Wednesday, June 17, 2020
More advice on memory, and how to improve it! Last week I wrote a bit about improving memory for the bar. However, I want to dive a bit deeper into the topic.
I’m going to talk about three aspects of memory, that if used in your studying, can actually help you vastly improve what you are trying to memorize!
The forgetting curve says that we can predict when you will forget information, the spacing effect shows that if we study just before we would forget we can improve memory, and the testing effect tells us that testing ourselves improves memory. Using these three things together can really help! I’m going to particularly focus on the testing effect, as I think that’s something you can easily employ while you study.
The Forgetting Curve
It is almost universally accepted that memories decay over time. Researchers, over time, have discovered that we can predict when the memories will begin to decay. This is the forgetting curve. It was first discovered by psychologist Hermann Ebbinghaus in 1885. He found that beginning just after a person learns information, their ability to remember the information, or recall, starts to decay. When he used nonsense syllables to test, it only took 20 minutes for the average test subject to have a less than 60% likelihood of recalling a syllable. An hour, it was less than 50%, and a day later, test subjects had lost nearly 70% of the information. A month later, learners retained only 20% of the material.
Ebbinghaus also discovered that while the initial rate of decline is fairly steep, the rate of decay declines with time. This means that memories that “survive” become less likely to be lost over time. This also means that the longer a student is able to retain a memory in the initial stage, the slower the information will decay over time.
The spacing effect says that if you properly space yours studying, this slows memory loss, or memory decay. Basically spacing out learning and review helps adjust the forgetting curve. If you allow longer periods of time in between review sessions, you’ll improve memory.
Now, the trouble with the spacing effect for things like the bar exam is that you really have too much learn, and not enough time! So, what can you do instead? You can still apply the concept, but use it with something called interleaving.
Interleaving is mixing subjects up as you study. So, normal, or “blocked” practice is the idea that you will study one concept, or topic, until you feel comfortable and then move on. Interleaving is the mixing of those subjects. This works particularly well with the bar exam. Interleaving ha been shown to be more effective than blocked practice for developing the skills of problem solving, and also leads to long term memory retention! Both things useful for the bar exam!
Interleaving forces the brain to continually retrieve information, since each practice prompt, is different from the last. This means your short term memory won’t help you. Interleaving also improves the brain’s ability to differentiate between concepts. Again, something you need for the bar exam! However, because interleaving involves retrieval practice, it feels more difficult than “blocked” practice. So, it’s going to feel worse. It’s going to feel like you aren’t getting concepts. So, it’s important to remember that this studying feels worse, but has better long term results.
So, each day study a variety of topics. Yes, there will be instances where it makes more sense to focus on one topic for a few hours. But if you are looking to increase your ability to recall the information, make sure you are switching in between torts and contracts, and then civ pro, and then property and so forth.
Something else you can do, which isn’t as effective, but still helpful, is to change how or what you are studying. Don’t spend one day on MBE, and another on essays. Or one day completely listening to videos, or reviewing outlines. Do 15 MBE questions, and then 1 essay, and then review some flaschards, and so forth.
Finally, my favorite, the testing effect. I have mentioned before that testing increases memory. I hear students stress over getting questions wrong during practice and review. I understand why they might get frustrated, but they are missing the important fact that by testing yourself, you are actually increasing the odds that you remember a law.
Basically, people achieve higher rates of recall of information already learned when they have tested themselves, versus just passively observing. So, this is why I encourage you to do more questions instead of reviewing your outline. There is a time and space for passive review, but your memory really gets better each time you “test”. In addition, testing without feedback will help with recall, but the effect is stronger when the testing is associated with meaningful feedback. So, what does this mean? Make sure to fully review each and every answer!
Remember, as you practice for the bar, don’t think of doing practice questions as assessment, or an indicator of how much you know. They can be both of those things, but start thinking of practice questions as a way to increase long term memory!
Studies show that self-testing even a single time can be as effective as reviewing information five times. Think about that – do you want to do one multiple choice question, or review your flash card five times? A study used a group of students who were given schedules to learn vocabulary words – the schedules were studying OR testing, and another group that was given a schedule to study AND test. A week later, the students who did the testing remembered 80% of the vocabulary words, versus 35% of non testing students. Now, I should point out that memorizing vocabulary is easier than memorizing legal concepts. In addition, the bar exam is asking you to APPLY those legal concepts, which you can’t do with memory alone. But that’s another reason why the testing effect is so useful!
So, your overall takeaway form all of this should be that practice DOES make perfect, and does help memory. In addition, breaks are still a good idea!
Note: To write this I relied heavily on the following:
n.d. Bjork Learning and Forgetting Lab. Accessed June 15, 2020. https://bjorklab.psych.ucla.edu/.
Teninbaum, Gabriel H. 2017. "Spaced Repetition: A Method for Learning More Law in Less Time." Suffolk University Journal of High Technology Law.
Monday, June 15, 2020
One year ago this month, I wrote my first post for the ASP blog. And while it seems like only yesterday that I began my quest to bombard readers with my weekly musings, I have decided to step aside to make room for other voices to be heard through this forum. Today will be my last post as a regular contributing editor, and I will use this opportunity to reflect on the wonderful learning and growth experience that the year has brought.
I’ve learned that:
Education and advocacy are not parallel paths, but rather an important intersection at which the most effective teachers are found. I left a high stakes commercial litigation practice for a role in academic support. I naively believed that an effective teacher had to be dispassionate and objective and more focused on pedagogy than on legal advocacy or controversial topics. However, I grew to realize that the very skills that made me an effective lawyer still guided me in the classroom to teach my students and to open their minds to new perspectives. My realization was affirmed when ASP whiz, Kirsha Trychta, reminded us that the courtroom and the law school classroom are not that different.
Anger can have a productive place in legal education and scholarship. I don’t have to conceal or suppress my passion to be effective as a scholar. I am angry on behalf of every summer (or fall) 2020 bar taker. I am bothered by states that are so tethered to tradition that they refuse to consider the obstacles and challenges of preparing for a bar exam during a pandemic. It troubles me to see law schools close the doors to their libraries and study spaces, and yet expect 2020 bar takers to perform without the benefit of quiet study space and access to internet and printing. I am flat out disgusted by the notion of forcing law students to assume the risk of death to take the bar exam. And I waive my finger to shame the states that have abandoned exam repeaters and that waited or are still waiting to announce changes to the exam dates and format after the bar study period has begun. These states have essentially moved the finish line mid-race, and our future lawyers deserve better. But thanks to the vocal efforts of others who have channeled their righteous anger into productive advocacy and scholarship, I’ve seen states like Indiana, Michigan, Nevada, Utah, and Washington emerge as progressive bar exam leaders in response to a crisis.
Silence is debilitating. Like so many others, I was taught to make myself smaller, to nod in agreement, and avoid topics that would make others uncomfortable. The untenured should be seen, not heard. I am the person that I am because of my collective experiences. Stifling my stories and my diverse perspective would be a disservice to my calling and to the next generation of lawyers who need to be met with a disheartening dose of racial reality. As soon as I showed the courage to speak up and step out of other people’s comfort zones, I found that I was not alone. My ASP colleagues, like Scott Johns, Louis Schulze, and Beth Kaimowitz and others, were right there speaking out too.
Glass ceilings become sunroofs once you break through them. In the last few years, I have seen more and more of my ASP colleagues earn tenure or assume tenure track roles. And while a job title or classification, will never measure one’s competence or value, our communal pushes for equity are visibly evident. ASP authors continue to make meaningful contributions to scholarship in pedagogy and beyond. Thank you to Renee Allen, Cassie Christopher, DeShun Harris, Raul Ruiz, and the many, many, many others who I can’t name but whose work I’ve read and admired. With varied voices, we are paving the way to enhanced recognition and status in the academy, and with mentorship and writing support we are forming the next wave of formidable ASP bloggers, scholars, textbook authors, and full professors.
June 15, 2020 in About This Blog, Academic Support Spotlight, Advice, Bar Exam Issues, Bar Exams, Current Affairs, Diversity Issues, Encouragement & Inspiration, News, Publishing, Weblogs, Writing | Permalink | Comments (0)
Wednesday, June 10, 2020
I keep getting asked about memorization for the bar exam. Specifically, “How on earth am I supposed to memorize all of this?” and “Do you have any tips on memorization?”
So, here we go!
First of all, memorization is a bad word. I hate it. You want to remember, or recall, but not memorize. Why do I make a big deal about this? Well, for a couple reasons.
First, our brain is awful at memorization. Briefly, we have short term memory, long term memory, and memory retrieval. Short term memory can also be called working memory. It’s like a short picture that only lasts minutes. Next is long term memory, where memories are stored. And finally, memory retrieval, which is what you are concerned with for the bar exam. This is also the most difficult to achieve. So, your aim isn’t really to “memorize”, but to remember and recall.
Also, if you focus on memorization, instead of learning, you will get overwhelmed and stressed. So, reframe the idea in your mind for more success.
So, what CAN you do?
The power of Story and Emotion
Memory is often tied to stories, and strong emotions. This is why our autobiographical information is easy to recall. We might smell a certain food, and fondly remember a lovely family celebration we had as a child. These memories are typically vivid and strong. That’s because we process them as stories, not facts. If you are at a party, you don’t focus on individual details to remember, like the color of the walls, or the music playing, and consciously try to memorize it. You remember it because it’s happening to you, it’s a story. In addition, you are more likely to have a vivid memory of that party if you are feeling a strong emotion, usually intense happiness. (Carey, 2014) or (Tyng, Amin, Saad, & Malik, 2017)
So, how do you make this work for bar review? The act of studying doesn’t make for a good story, and you aren’t likely to feel very strong emotions. Maybe frustration, or stress, but those actual have a counterproductive impact on memory. So, it’s up to you to manufacture stories and happiness. Don’t just stare at outlines, or black letter law. Do more and more practice questions, which are stories. Or, even better, make up new hypotheticals of your own, the more ridiculous the better. If you’ve seen me lecture on any bar topic, you know I love crazy stories. I’m sure my students often roll their eyes, and wonder why I’m being ridiculous. But it’s to help with memory. The more absurd or ridiculous my examples, the more likely you are to remember the law.
Also, manufacture happiness, as much as you can. Studies have shown that test subjects that are placed in a room with simple smiling faces do better on memory. So, surround yourself with happy photos or pictures of your pets. Call one another on zoom and make up ridiculous hypotheticals until you are all laughing.
Speaking of stories, practice! Each MBE fact pattern, and each essay hypothetical, are stories! So, not only will practice make you better at tackling the essays or MBE questions, but practice gives your brain
stories to hold on to. The examples will help your memory! If you are trying to memorize the rule for parol evidence, doing 10 MBE questions, and really learning from each question, will serve you better than reviewing your outline over and over again.
In cognitive psychology, chunking is a process by which individual pieces of an information set are broken down and then grouped together in a meaningful whole. The word chunking comes from a 1956 paper by George A. Miller, "The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information". This was because the brain can typically only remember 7-8 items at once.
So, what does chunking information mean for you? Well, let’s think of a grocery list.i
So, you have to buy the following:
You might want to chunk by meal. For example, Bread goes with turkey and cheese, and maybe tomato. Milk goes with Cereal, and maybe those go together with orange juice. As I’ve listed it, the items are random, so there is no way to remember them. Or there is, but it’s very difficult. But grouping by the meals will help your memory.
Alternatively, you can group by where the items are in the store. It is likely that the orange juice and milk are together, and the so are the bread and cereal, and the turkey and cheese.
So, the first step in chunking is to think about how you will need to use the information. This is one reasons I place practice so highly. When you go to memorize the law, you can’t memorize it in a vacuum. You have to think about how you will be using it, and then chunk from there.
Our brain learns more effectively if we space out information. So, this is more support for my theory that breaks are magic! Think of it like this, if you are building a brick wall, you need to let the motor in between the bricks dry before you stack too high. Similarly, you let one coat of paint dry before you put on another. You get the idea.
So, while studying for the bar, space out your studying. While it might feel like you don’t have time, you need the space to solidify your knowledge.
Take breaks! I wrote an entire blog about this last week. But your brain can only process and remember so much at once. Essentially, if you are reading 50 pages of outline, without a break, you are only likely to remember the first and last few pages. That’s a waste of time! Take frequent breaks, and break up what you do. The more active you are, the better.
Write an essay with open notes. Do a set of 5 MBE questions, and then review the applicable law. Mix up subjects. All of that will help with memory.
General Mental Health
Finally, I mentioned before that if you are frustrated or stressed, that doesn’t help with memory. That means you have to take care of yourself mentally while you are studying. This is going to vary for everyone, but make your mental health a priority. And if you feel yourself getting frustrated or overwhelmed, see above and take a break!
Finally, remember that your aim is to learn, not merely memorize! Also, this is just meant to be a primer, and is already too long for a blog post. There is so much more to be said about various memory techniques.
Carey, B. (2014). How We Learn: The Suprising Truth About When, Where, and Why It Happens. New York: Random House.
Tyng, C. M., Amin, H. U., Saad, M. N., & Malik, A. S. (2017). The Influences of Emotion on Learning and Memory. Frong Psychology.
i I completely took this idea from Paula Manning at the 2015 AASE Conference in Chicago, and have been using it ever since!
Thursday, June 4, 2020
I've taken the title to this little blog from a phrase in the recent post of Prof. Marsha Griggs, calling us, all of us, to action and resolve to fight, work, and promote justice. Griggs, M., "Despicable Us," Law School Academic Support Blog (June 2, 2020). As Prof. Griggs reminds, it's our oath, and in that oath, we say that we are committed to safeguard justice for all. But what if there's little to safeguard? What then?
The horrific brutal torture and killing of another innocent person just last week makes one wonder. There have been so many others, not just in the U.S., but around the world. What is it that leads so many to blindly look away, to not care or empathize, to sit on laurels when, frankly, the laurels are all dried up?
I'm tired of calls to come together and talk. And, in light of the ongoing protests, it seems like I am not alone. But as Prof. Griggs points out, most are silent.
So often I'm that one - the silent one. I'm not sure what I can do or say but I know that I hold a position of great responsibility, which obligates me to spring to action to make the world as right as it can possibly be. That takes real work, not trite talk. I'm worried that so few really want to do that work, that so few are really eager to change, that so few are so wedded to the present that there's little promise or hope for a brighter future. I'm worried that I'm one of those, waiting for others to right an upside down world.
I didn't know what else to do. So I wrote letters. First to the mayor of Minneapolis. Then to the police chief. Next to the mayor of Denver and the police chief of Denver. Finally to my U.S. senators and local U.S. representative.
Everyday counts because every person counts. As I tried to explain to my students this summer, there are ways to move forward towards the pursuit of justice, right now.
First, take a look at how many municipal ordinances and state laws provide for incarceration. I think that many of those punishments are out-of-all proportion with the social harms for which criminal laws are supposed to countenance. And, the lack of proportionality is, I think, a violation of constitutional due process because it burdens people for no reason at all.
Second, take a look at the details of what happened in Minneapolis. A telephone call about a possible counterfeit $20 bill. Two police show up to investigate. One draws a gun and orders Mr. Floyd out of the car. $20 dollars. What happened to the investigation? It was like the police wanted to make an arrest. The alleged crime being investigated, I think, was a specific intent crime, requiring proof of both the act of using counterfeit currency to purchase goods or services along with the mental state of intent to use counterfeit currency. Under the due process requirement of the Constitution, that would seem to require a real investigation rather than drawing a weapon. It sure seems like a violation just to walk up to a car and threaten someone's life with lethal force without at least asking any questions. That's why I wrote to the city leaders and politicians admonishing them to reform criminal laws to require the issuance of citations rather than proceeding with arrests, which are by their nature acts of force and the escalation of force. Better to proceed with deescalation, issue a citation after a thorough investigation, and then bring the issue in front of an independent magistrate.
Third, I've read a lot of police reports. They talk a lot about probable cause but in general have little facts to show for it. And, because the Constitution requires both probable cause to issue a citation or to make an arrest, with reasonable trustworthy facts as support, its time to ensure that police reports, etc., list identifiable, particularized, concrete allegations of fact to support both the culpable criminal act of the crime alleged along with the culpable mental state. In my opinion, that's a requirement of not just the Fourth Amendment but also the Due Process Clause to provide meaningful notice of the specific grounds for criminal charges. What if police reports fail to identify such facts? It's defective and the citation, arrest, and/or indictment should be quashed, immediately. And, the police authorities who harmed a person by failing to provide constitutional notice ought to be liable under civil rights laws for acting under the color of law without constitutional authority in explicit derogation of due process protections. And prosecutors that pursue such defective charges ought to be held accountable by regulatory agencies, the public, and the legal system.
Fourth, according to news media, at least one of the police officers arrested and charged for the death of Mr. Floyd had previous disciplinary records, which, as far as I can tell, resulted in little action and were not available to the public at large. When political leaders, as our representatives, appoint police officers, as our agents, and when the political leaders then arm those police officers with lethal force, the HR records of those officers should be available to us all. Nothing should be secret; after all, the police are supposed to work for us. But, I hesitate to add, police unions are mighty powerful. Often times, it seems, more powerful than political leaders. But if a union protects someone who is engaged in unlawful acts, then we should hold unions accountable too.
Perhaps my suggestions to politically powerful leaders won't make any difference. So far I've not received any responses. But I'm not giving up. All of us only have one life to live. It's up to us to choose to live it fully, wisely, and for others. I fall short, so often, and all the time. But with each day, we get a new opportunity. The past need not hold us back, if only we have the courage to act. After all, that's the constitutional duty that we've pledged ourselves to embrace on the behalf of others. To act justly on the behalf of others. (Scott Johns).
P.S. As a starting point, please take a look at Attorney General Ellison's statement and the criminal charges filed against the 4 Minneapolis police officers:
I quote in part the words of Attorney General Ellison from the news release: "
"To the Floyd family, to our beloved community, and everyone that is watching, I say: George Floyd mattered. He was loved. His life was important. His life had value. We will seek justice for him and for you and we will find it. The very fact that we have filed these charges means that we believe in them. But what I do not believe is that one successful prosecution can rectify the hurt and loss that so many people feel. The solution to that pain will be in the slow and difficult work of constructing justice and fairness in our society.
That work is the work of all of us. We don’t need to wait for the resolution of the investigation and prosecution of the George Floyd case. We need citizens, neighbors, leaders in government and faith communities, civil- and human- rights activists to begin rewriting the rules for a just society. We need new policy and legislation and ways of thinking at municipal, state, and federal levels. The world of arts and entertainment can use their cultural influence to help inspire the change we need. There is a role for all who dream of a justice we haven’t had yet.
In the final analysis, a protest can shake the tree and make the fruit fall down. But after that fruit is in reach, collecting it and making the jam must follow. The demonstration is dramatic and necessary. But building just institutions is slower and more of a grind, and just as important. We need your energy there too. We need it now."
Wednesday, June 3, 2020
Dear Bar Takers,
I’d like to talk to you about breaks. I see you. You are overwhelmed, you are stressed. Some of you don’t even know if you have a seat. Let me stress – I see you.
In addition, I’d like to acknowledge that there are a million things making it hard to focus right now. I’ve been struggling to focus, and I’m not studying for an exam. The non bar exam world is causing a great deal of anxiety, anger, sadness, and fear. For some, more than others. It’s understandable to have those emotions, and not feel like you can 100% focus on the exam in front of you, especially if you aren’t even certain when you’ll take it. That’s all valid.
So, I want to talk about breaks, and why they are important. Taking frequent breaks helps improve your memory and focus, and helps reduce stress. Basically, research tells us that your brain can only focus for so long. It doesn’t matter how studious or determined you are, the human brain will not stay focused for 8 hours straight. In fact, if you aren’t taking practice exams to work on your stamina, I suggest taking a short break every hour or so. This is not my advice, this is advice from the neuroscientists.
Specifically, if we don’t take breaks, our brain gets fatigued. Once an hour, if not more, stand up and stretch. Or go for a brief walk. Switch your focus. All of these things help you improve memory and focus.
Also, taking breaks for mental health is ok. In fact, it’s encouraged. If you are getting frustrated with a topic of a question, take a break. Walk away and grab lunch. Take a walk outside. Just take a break from the frustration. If you push through, and continue to attempt to study while frustrated, your brain is not processing the information. It’s also ok to plan for entire mental health days. Your brain might need a longer break, and that’s ok too. If you are struggling to focus, maybe current events or family worries are weighing on your mind, step away. Do something for yourself and come back to studying later.
Finally, taking breaks for your physical health is ok and encouraged as well. I can’t tell you how many times I’ve had students get sick, maybe a bad cold for example, and they refuse to take a break. Not only are they not letting their body heal, which is not ideal for the long run, but your brain isn’t as focused as it could be, nor is it properly processing information. It’s far better to take a few days off, fully heal from the cold or other illness, and then dive back in feeling better.
So, in summary, while it is important to get in enough study hours – which are, let’s be honest, many – you owe it to yourself to take care of yourself. This includes breaks, and taking time for yourself. It’s also ok to be human, and give yourself permission to have unfocused days.
In addition, reminding yourself of your motivation is going to help improve your memory and learning. Write a litter to yourself, or a post it to put on your laptop. Why did you go to law school? Why do you want to take the bar exam? Yes, I know, you want to take the bar exam so you’re licensed. But why do you want to be licensed. Keeping your goals and motivation in sight, literally, will help you focus and learn.
I’d also like to stress the importance of a different kind of break. We learn best by doing different things. So, don’t just focus on video lectures. Or do an entire day of MBE questions. (Unless you are taking a practice test.) Mix it up. Spend 30 minutes writing an essay, and then review it. But then, do 15 MBE questions. Then watch parts of a video. The more you jump from one item to another, the better your brain is working, and the less likely you are to suffer from fatigue and lack of focus. The same goes for the subjects. Many students think they should spend a day, or even a week, on only one subject. But you actually stretch your brain, so to speak, by doing a mix of subjects.
Finally, despite my profession as bar professor type person, I can assure you that the bar exam is not the most important thing in the world. It really isn’t. Yes, you need to pass it to be licensed. And I want you to be licensed! But it doesn’t define you as a person, and if you fail, or have to take time off, that won’t even define you as an attorney. So, what I’m saying is that if this is not the right time for you to take the bar exam, that’s ok. There is no shame in that. You need to do what works best for you, and if that means delaying the exam because you are afraid for your health, you are focused on other things, too anxious or unfocused right now, or any number of reasons, the exam will still be there in 2021.
No matter what you choose, good luck! I look forward to seeing you as a colleague soon.
Thursday, May 28, 2020
That might be an overreach. But not by much. I only witnessed - at the most - 3 different flowers along the nearby hiking trail. Another hiker, who I met along the way, exploded with joy that she had spotted 44 different flowers along the same identical path, many of which were rarely seen during the short Colorado spring season. Same path; different eyes.
That experience left me wondering what else I am missing in this journey of life. Much, I suspect. Especially in these times with much of my face hidden behind a bandana. You see, I had a different purpose in mind on the hiking trail. And that resulted in a different pace and a much different outcome.
My fellow hiker's words hit home with respect to bar prep. Much of the colloquial wisdom is to practice testing yourself, constantly, as you prepare for your bar exam. Watch the clock, and my oh my, certainly don't take a timeout to research a bit of law when you are stumped. But, if in your bar prep you are driven by working the clock, you'll miss much. And what you miss is the opportunity to learn to improve critical reading and problem-solving skills because developing those skills takes lots of time and concentration - just like my fellow hiker spotting 44 flowers in beautiful bloom along the trail.
Let me share a secret. Rare is it that people run out of time on the bar exam. Oh it happens. But it's not because they didn't practice with the clock. Rather, it's often because the gambled with proven strategies to tackle their bar exams. They grabbed hold of the essays and then spent precious time looking for their favorites. Or, they hit the multiple-choice bubbling along the way while leaving many answer choices blank, with a long list of questions that they'd like to come back to, in the event that they have more time left at the end. On the bar exam, you don't have time to look at questions twice (or even more). Rather, just solve them one-at-a-time as they appear in the materials.
I know, you're saying, "Well, how am I going to get faster if I don't practice with the clock?" I'm not saying never practice with the clock, but the time to do so is much later, mostly only with mock bar exams, and mostly only in the last two weeks or so. In my experience, if you work on getting faster, you'll be super-fast but also often super-wrong because you haven't worked on seeing the patterns and observing the commas, the phrases, and the many nuances that are the heart of doing well on the bar exams.
Let me make it concrete. I have never seen a person fail the bar exam because they didn't know enough law or weren't really speedy enough. Rather, when people do not pass the bar exam, they tend to write about issues that weren't asked by the problems. That's because they worked mostly for speed through as many problems with goal of constantly testing themselves. "Am I passing yet? Is that good enough? I've got to get up that trail, so to speak, as fast as possible."
Instead, let go of the clock. Spend time in the midst of the problems. Question the questions. Puzzle over them. Ponder and probe the language, the phraseology, the paragraph breaks, and the format of the questions. In short, for the first six weeks of bar prep, practicing problems to learn with just an occasional check-in mock bar exam to see how you are doing. That way you'll be sure to see what's hidden in plain sight. And, that's the key to doing well on the bar exam. To locate and expose, what one of my recent students brilliantly called the "undertones" of the problems...that are really in plain sight...if only we take the time to learn to see.
(Scott Johns - University of Denver).
Tuesday, May 19, 2020
In a normal year, my students would all have begun their bar preparation yesterday, coasting on their post-graduation-ceremony momentum right into a seat in front of the first of many lecturers. But in New York, and more than a third of all U.S. jurisdictions (in which -- again, in a normal year -- more than half of all July examinees would be sitting for the exam), the date of the bar examination has been postponed for six weeks or more, leaving bar students in those jurisdictions with the gift they hate most of all: uncertainty.
What is to be done with all this extra time? Bar preparation companies cannot agree: some are simply administering their typical ten-week program, just starting it six weeks later than usual, while others have reworked their program schedule, starting it earlier and drawing it out over a longer period, but with shorter study days. Employers, many contending with their own virus-induced crises, have added variables to the new graduates' calculations, some allowing their new employees to start early and then take time off, others expecting hirees to adhere to their original early-August start dates, and still others unnervingly withdrawing their employment offers indefinitely. Even we bar support specialists can only make well-educated guesses about how to make use of six extra weeks. We have no data, no direct experience of how a delay like this will affect individual students or the testing cohort as a whole. How much more study can a student put in without burning out? Should the extra time be spread across all aspects of bar study, or should certain skills or subjects receive more attention? Will MBE scores increase overall for those who take the test in September? Decrease? Will the bell curve spread out? Will this hurt or help examinees?
Sensibly, 43 more days of prep time should be seen as a boon. In a normal year for bar study, isn't time the most precious resource of all? In my discussions with students, I have suggested they think of this extra time the way they might think of an unexpected financial windfall. You don't have to spend it all in one place. You might devote a large chunk of it to bar study -- that is, after all, the primary focus of the summer -- but how you specifically budget it depends on your own circumstances. An examinee facing financial pressures might choose to work for a few weeks, then begin studying a few weeks early. Someone eager to get started studying might begin this week, but set aside a week or two, at strategically placed spots on the calendar, to put study aside, connect with family and friends, or do whatever else helps them refill their gas tank. It's important not to let the time slip by unnoticed -- it would be bad to turn off the TV one night near the end of June and realize you had not done any bar study -- and that's why it's important to budget the time and actually create a schedule. And that, for some, is what seems to turn this temporal windfall into a vexation. In order to budget, you have to make choices.
No one wants their bar prep period to feel like playing endless rounds of "The Lady or the Tiger?" At every step: choose the right path, and you will be rewarded with contented knowledge and testing skills; choose the wrong path, and you will be mauled by a ravenous UBE with MPT fangs and MBE claws. In a normal year, examinees only have to be certain that the regimented bar study course they have chosen, which has worked for thousands of examinees before them, will continue to reliably work for them. This summer, though, because so much is unregimented, some examinees are anxious about being uncertain about so much more. Am I studying enough? Am I studying too much? Am I studying too early? Am I studying the right things, in the right way, for the right amount of time?
Two propositions can help people in such a tizzy of uncertainty. First, assure them that they are not feeling this uncertainty because of some character flaw that prevents them from making definitive choices. They are not losing their heads while all about them are keeping theirs. This is an inherently uncertain situation -- we can't even be assured the exam will actually be administered in September! -- and so there is no single "correct" choice. The best they can do is what they've been training to do for the past three years: exercise good judgment based on competent authority and relevant facts. As long as they are not just guessing, as long as they are talking to us and their mentors and their instructors and applying what they learn to what they already know about themselves and the task before them, they can at least make a good choice.
Second, help them subdue the perception that they are overwhelmed by uncertainty by reminding them of what is certain. The content and structure of the bar examination remains the same (well, except in Indiana), as do generally those of the reputable bar courses designed to prepare examinees for the test. They still have their law degrees, and the skill, intelligence, and diligence that helped them earn those degrees. They have a community of classmates, instructors, and mentors who they can rely on to share perspective and feedback on the decisions they do make. They have a certain task, they have certain abilities, and they have certain resources. In the face of uncertainty, those are best certainties to have.
Thursday, May 14, 2020
It's in the moments of fiery crises that heroism is revealed.
I think of our students, heroes everyone of them, finding within the resiliency and creativity to successfully adapt to online learning. I think of the academic support community and law school faculty and staff, springing into action, resolutely empowering novel ways to encourage vibrant learning despite the difficulties. I think of the many workers - across all walks of life - giving of themselves, in the front lines all of them.
It's in these hard spots of life, the difficulties and trials, in which our true beings are revealed, unmasked so to speak.
But there's more unmasking to be done. And quickly too. That's because many of our students have just finished their law school studies and are ready to graduate. Ready to move onto the next step. Ready to serve and contribute to the world.
Yet many states are postponing bar exams with no certainty that latter dates will be any better - health-wise - for holding in-person bar exams.
However that's not the situation that's just been decided by the Indiana Supreme Court. Indiana is moving forward this July 2020 with a one-day online bar exam. And it looks like Nevada might be joining the movement to an online exam too. And one state, Utah, has taken an even bolder approach in implementing an emergency diploma privilege. https://www.law.com/2020/05/08/in-a-first-indiana-will-hold-one-day-online-bar-exam-in-july/?slreturn=20200414232636; https://www.nvbar.org/nevada-supreme-court-seeks-comments-by-may-14-re-modification-to-july-bar-exam/
Nevertheless, back in April in a white paper, the National Conference of Bar Examiners (NCBE) brushed aside the possibility of online exams or diploma privilege, arguing that online exams were unworkable and that the diploma privilege was not beneficial to the public good. http://www.ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F239.
When I applied to law school (and for the bar exam), there were no online applications. It just couldn't be done. But oh how times change, if only we are willing, courageous, and creative. Now, I doubt one can apply for law school save through an online application. The same goes, I suspect, for most bar exam applications. It's all online now. Except for the bar exam itself.
The only thing that limits us to the present is us.
It's not too late for New York, or California, or any other jurisdiction to implement a one-day online bar exam this July.
But that takes removing the masks that so often keep us living in the present, forever failing to see the future. And, to be honest, living in the present, when the present of the past no longer exists due to COVID-19, is not really living in the present. It's living behind the mask of the past.
The next step is for you - state supreme courts and jurists. We would like join with you, and local and state bar associations and practitioners, to move forward thus summer, whether that's with an online bar exam or with diploma privilege. The choice is yours. (Scott Johns).
Monday, May 11, 2020
In response to the mounting uncertainty about the administration of the July 2020 bar exam, Indiana has moved its exam online.
By order of the Indiana Supreme Court published May 7, 2020, Indiana will offer a one-day online exam in late July. According to law.com “that makes Indiana the first jurisdiction to commit to an online July exam, and the first to say it is creating its own version of the licensing test.” Indiana was one of the last states to adopt the Multistate Bar Exam, and had, for years, given a purely “state-made” exam. Today, the Indiana exam includes multistate content and state specific essays, so the bar examiners likely have an arsenal of potential test content. Other states, like California and Massachusetts, have made nods towards an online exam, but have not publicly defined what their exam would look like or when it would be administered. Both California and Massachusetts have postponed their July exam until September.
Indiana may soon have company. The Chief Justice of the Nevada Supreme Court filed a petition recommending a temporary modification of its July 2020 bar exam to an online format. The petition is based on a recommendation from the Nevada Board of Law Examiners (BLE). The Nevada BLE proposed to administer a two-day, fully online, exam consisting of eight essays and one Nevada performance test. The Nevada proposal excludes multiple-choice questions. If accepted, Nevada will join California and Pennsylvania in administering its own performance test. The Nevada proposal is open for public comment. Anyone wishing to support (or oppose) the proposal should email the Clerk of the Nevada Supreme Court. Like Indiana, Nevada uses both multistate content and administers a state law essay exam.
The COVID-19 pandemic has added new layers of stress to the already hectic workloads of the academic support community. ASPers are affected by the pandemic in ways that our doctrinal colleagues are not. Traditionally, we are the ones from whom students seek counsel and clarity about the bar exam and how to prepare for it. Our ability to respond to those questions has been upended by proposed delays and the looming threat that a face-to-face exam cannot be administered in either July or September. All we know now is that we really don't know what will happen or how our students should best prepare. Added to the worry about whether there can be a bar exam at all, is how our students will fare on the exam and what our pass rates will look like.
The Society of American Law Teachers (SALT) called for suspension of ABA Standard 316 mandating that law schools maintain a 75% bar passage rate to remain in compliance. We can reasonably anticipate that bar pass rates will be lower in 2020 than in recent prior years. Students are under extreme stress dealing with pandemic related adjustments, fear of contracting the virus, and fear of spreading it to loved ones. Summer bar takers lack of access to law schools, public libraries, and quiet coffee shops for bar study, because they are not open to the public. Some may be battling illness themselves. Moreover, the administration of three separate exams with comparative and wholistic grading will also likely skew the exam outcomes and lead to a higher number of bar failures than would have occurred had all candidates taken the exam in the same administration. The Bar Advocacy Committee supports the SALT position and will present a letter to the Executive Board of the Association of Academic Support Educators (AASE) for signature, delivery, and public posting.
In the past, New York has been the state to follow, in terms of bar exam policy and development. Not so, anymore, as the limited seating debacle has cast a cloud of embarrassment and incompetence over the empire state. Who knew that we would see such progressive and compassionate bar policy leadership coming from Utah, Indiana, and now, hopefully, Nevada! It just goes to show that good ideas aren’t tied to population or politics—good ideas stem from compassionate effective leadership. And there is still room for more leaders with regard to the July 2020 exam.
Thursday, May 7, 2020
I once had a teacher tell me to never read good books. Never ever. And why not?
Because if I spent my time reading good books (or doing good things), then I wouldn't have time left to read the really great books (or do the really great things of life).
That's a lesson that has never left my side.
In bar prep, I'm convinced that too many are trying to do too much, and, in the process of doing good tasks, they aren't doing the great things that are really important for success on the bar exam. Let me be frank. You don't have time in bar prep to do good things. But, you have plenty of time to do the really great things, the things that produce fruitful learning.
With that in mind, here's a few tips:
- Do less reading and more pondering the law, how it works or doesn't, and what it means to you as a person.
- Do less note-taking and more puzzling through problems to learn the law.
- Do less testing and more practicing, feeling free to work problems over slowly, reading them out loud if you'd like, as you develop confidence and competence in your own voice as an expert problem-solver.
That's just a few suggestions.
But, rather than hear it from me, a teacher, I thought I'd share the wisdom of a recent successful bar-taker in that person's own words. After all, they say that a picture is worth a thousand words (but the wise words from the heart & mind of a recent bar taker -- who wants to share with YOU what she/he learned through re-taking the bar exam -- is worth a priceless fortune).
Advice for First-Time Bar Takers:
- Practice way more than you think! If you are wondering whether you should watch a lecture or do a practice question, do the practice question.
- Let go of memorizing everything. It is impossible. Learn what your weak areas are and spend more time with those subjects.
- You will feel like you know nothing until approximately the last week of bar prep. Somehow, magically, it does come together. I promise.
- Do all the bar prep practice tests.
- Think really hard about who you want to study with. This is not the time to do something different from how you handled law school.
- Come up with a plan and stick to it. The bar prep calendar is really helpful for this. Decide how many practice questions you want to do everyday and do it. But if you are starting to burn out, be OK with taking breaks. It's a marathon!
Advice for Fresh Start Re-Takers:
- First, I am so sorry that you have been dealt this card. There is no question that it hurts. Take care of yourself and do things that make you happy.
- As you begin planning your next round of bar prep, make sure to work with the law school to identify the weak aspects of your exam answers. This will help define ways you can “work smarter” instead of “work harder.”
- Also work with the law school to identify new ways to study. It might be changing up your study tool or how you review your answers. For me, studying ALONE the second round vastly improved my scores. I think studying alone boosted my confidence because it required me to look up answers to my own mistakes. I also stopped comparing myself to friends.
- Ditch the bar prep lectures. Use that time to practice WAY MORE MBE and MEE practice questions. I probably tripled the amount of practice questions I did during my second round of bar prep.
- Log your progress. I was way more intentional about compiling lists of rules I kept missing on MBE questions. This helped me to keep track of weak areas so I could spend more time learning the law in specific subjects.
- Spend timing thinking about any testing anxiety you might have. Adding mindfulness meditations to my study plan helped a ton!
That brings me back to the start of this little essay. How do you know what are the really great books to read (or the great things to do)? That's were wisdom comes in. Reach out to a person you trust, on your faculty or staff or from a colleague or mentor who knows you as a person from head to toe. The advice that I've shared in this blog is from such a person, who, although he/she doesn't know you, knows you, because she/he has cared enough to share with you the lessons learned through the process. So, you have a friend who is rooting for you (and that includes me too!).
Thursday, April 30, 2020
Often times I hear students suggest that what they are learning in law school seems so unmoored to the reality of the world, especially in the midst of this pandemic. I wonder. Could there be a way to connect law school learning to real life experiences? More to the point, to the extent that students feel that way, that might be our fault for failing to use the latest news events as tools to facilitate and enhance our students' learning.
So, here are a few examples of some rich possibilities to help bring the gap between academics and practice as students finish their online classes and prepare for their upcoming final exams:
I. Retrieval Practice - Fed Civil Procedure (Venue):
Perhaps this ongoing story caught your eye about the Cuban doctors suing the Pan American Health Organization, an agency of the United Nations in federal court in Miami, Florida. Cuban Doctors Who Worked in Brazil Sue International Organization Alleging Forced Labor, Miami Herald (Nov. 30, 2018).
According to recent press reports, this class action is pending a decision by the judge as to whether to transfer venue to Washington, DC, from Miami, Florida.
Here's some of the questions that I asked students: (1) What's the standard for a request to transfer venue? (2) What's the rule for the initial venue choice? (3) What are the basic requirements for a class action case?
II. Retrieval Practice - Property and Contract Law (Marketable Title & Contract Defenses):
Here's one for the 1L students preparing for final exams. It seems that a Chinese company is suing a South Korean company in State Court in Delaware to compel (i.e, for an order of specific performance) the defendant to close on a real estate deal to buy a portfolio of 15 luxury U.S. hotels. https://www.wsj.com/articles/former-anbang-unit-suing-south-korea-s-mirae-for-failure-to-close-on-5-8-billion-hotel-portfolio-purchase-11588006092?mod=searchresults.
According to the news article, the defendant asserted two grounds for its refusal to close the deal as justification for its breach of a property sales contract. First, the defendant argues that the COVID-19 pandemic serves as valid contract defense of impossibility to perform. Second, the defendant argues that the title for the hotel group was unmarketable at the time of closing earlier this month because a "California individual had secretly created fake deeds [that] purported to transfer ownership of at least six hotels in California [in the hotel group]. Id.
Here's some questions to ask of students? (1) What's marketable title mean? (2) Is the defendant entitled to a contract defense to prevent specific performance? (3) is this lawsuit a common law contract case or a UCC Article 2 case and why?
According to a recent media report, several individuals have filed suit against the California governor alleging that the governor ordered the state police to stop issuing permits for protests on the state capital grounds while "noting the Capital in Sacramento has hosted a variety of [other] demonstrations." https://www.msn.com/en-us/news/us/california-faces-civil-rights-lawsuit-after-highway-patrol-bans-rallies-at-state-capitol-over-coronavirus/ar-BB13lbI7.
The plaintiffs alleged violations of their First Amendment rights, presumably on grounds that the state capital park area is a public forum in which few restrictions of speech are permissible. There also seems to be lurking an equal protection issue based on allegations of differential treatment based on the content of protesters' messages.
Here's a few questions that come to mind? (1) What's a public forum? (2) What's the test for speech restrictions on a public forum? (3) What test would you use for equal protection analysis?
Here's one last suggestion...
With final exams soon to begin, the news is a great way to (a) mix up practice with a variety of different subject matters; (b) help students issue spot and analyze legal issues; (c) develop and strengthen student confidence as problem-solving subject matter experts; (d) encourage students that what they are learning today is valuable for their tomorrows; (e) energize students in practical ways to incorporate retrieval practice and analysis in their final exam preparations; and, (f) help students see how lawyers, the judicial system, and litigants interact in the public sphere to shape social and political policies. So, keep your eye out for the latest news. It almost always has a few legal issues or more buried in it. (Scott Johns).
Wednesday, April 29, 2020
- Take a minute, it’s ok to be upset.
First and foremost, this does not define you. Trust me, we have all heard stories of prominent lawyers, judges, and politicians that have failed the bar, sometimes multiple times. I could make you a list of all of the successful lawyers that were unsuccessful on the bar exam their first time. But I won’t, because failing the bar does not define them. If you try to make a list, you won’t find “failed the bar” on Wikipedia pages, or official biographies, or resumes. It’s not because it’s some secret shame, but because no one cares. In 5-10 years, no one will care how many times it took you to pass the bar. In fact, they won’t care in 6 months or a year. It seems like a defining moment right now, but it isn’t. Your defining moments come from the way you treat clients, the way you treat colleagues, and what you choose to do with your license once you have it.
So, take a few days to be upset, it’s ok. But then dust yourself off, and start looking towards the next bar. Also, remember that failure is not the opposite of success, it’s a part of success. Every successful lawyer has failed – on the bar, at trial, in a negotiation, not getting a job. Every failed politician has lost a race. Every failed Olympian has lost a game or a match. That failure is a normal way to achieves success in the future. However, for that to be true, you have to learn from failure.
- Meet with Someone.
Reach out to your school's academic support or bar professionals. We want to meet with you, and we won’t judge. We will provide a sympathetic shoulder, and we will talk out a plan. Trust me when I say that we WANT to hear from you.
- Request your essays back, if you can.
Many states allow you to request, or view, your essays.
Once you have your essays, I want you to do a couple things. Review your answers: now that you are removed from the day of writing, what do you notice? Then, if possible, compare them to the sample answers. See if you can pick out patterns. Don’t just focus on the conclusions, or the issues spotted. Did the sample answers use more facts? Or have a more in depth analysis? Be honest with yourself. Also, if you have a varied set of scores (one essay is a 1, while another is a 5) compare the 2. What is the difference? Don’t just shrug it off as you know one subject better. Pay attention to the writing in both.
In addition, here is a CALI lesson (you should still have access) on assessing your own work. It may seem geared towards law students, but it can help you assess your essays: https://www.cali.org/lesson/18101
- Analyze your score
How close or far away are you from passing? Did you do better on a certain subject? Is your written score considerably better than your MBE score? This is an excellent place to start. Some things to keep in mind:
- If your essay score is higher than your MBE, it may be tempting to place most of your energy into MBE practice, and forget about essays. This will only result in your score “swapping.” So, while it is good to note that you might need more work on the MBE, don’t forget that you aren’t carrying the score wit you so you still need to practice essays. The reverse is true if you did better on MBE than the essays.
- Perhaps you did really well on the torts MBE, but your lowest score was civil procedure. Again, do not just focus on civil procedure, and forget other subjects. Your scores will just swap places, and not improve overall.
- You might be only 2 points away from passing. Great! However, your score is still starting from scratch. Meaning, in one sense, you only need 2 more points, but that’s not how the bar works, obviously. You have to still work to get the points you already got AGAIN, and it is likely you forgot things, and are out of practice.
- Think about external things while you were studying
Did something unrelated to the bar impact your studying? Perhaps a health issue, physical or mental? Perhaps a family emergency, or ongoing family issues?
Have you suffered from anxiety in general or related to exams? If you do, are you being treated for the anxiety?
These things can and will impact your studying. Not matter how much time and effort you put in, if you are not physically and mentally healthy, you won’t process the information correctly.
Not to mention, if there is something in your life that is distracting you, that will also impact how you process information.
If you were entitled to accommodations in law school, did you use them on the bar exam? If not, make sure you apply for them this time around. If you were denied accommodations, still try again. They likely need more recent testing, or paperwork.
- Think about study habits
The most important thing you can do is practice. Many bar students get caught up in trying to memorize every sing law, or master every subject. While this is admirable, and takes quite a bit of time and effort. However, mastering the bar is a SKILL. You need to practice. When I work with repeat takers, I often find that they knew the law, and they studied hard, but didn’t practice enough essays or enough timed MBE.
This matters for a few reasons. One is timing. You can know all the law in the world, but if you can’t write an essay in 30 minutes, you will struggle to get the scores you need. Similarly, doing 100 MBE questions in 3 hours is not easy, even if you DO know the law. You need to practice the timing, and practice for the stamina.
Secondly, the skill being tested on the bar is applying the law to the unique set of facts. Yes, you need to know the law to do this, but knowing the law is not enough. You need to practice the application.
This means that writing essays, fully out, not just passively reading sample answers or issue spotting, is key. It has to be a priority in studying.
In fact, all of your studying should be active. Don’t focus on rewriting, or reviewing, outline after outline. Again, yes, you need to know the law, but you are also more likely to remember the law if you apply it – in MBE questions, writing essays, and so forth.
- Change it up!
Different study habits work for different people. If you studied at home and found that you were easily distracted, find a space at the library or nearby coffee shop to study. If you did go the library/school/coffee shop every day, maybe try studying at home.
Finally, I am here for you. I am a resource, and look forward to helping you!
- CALI Lessons on improving multiple choice:
- CALI Lessons on improving memory: https://www.cali.org/lesson/18157
- CALI Lesson on issue spotting: https://www.cali.org/lesson/18169
- CALI Lesson on improving analysis: https://www.cali.org/lesson/18171
- Adaptibar: https://www.adaptibar.com/ (See Prof. Hale for possible discounts, or no cost options)
- Strategies and Tactics for the MBE: https://www.amazon.com/Strategies-Tactics-MBE-Bar-Review/dp/1543805728/ref=sr_1_1?gclid=CjwKCAiA-vLyBRBWEiwAzOkGVArOgksVIJF-Ay7c5WMFApM2Dic8N2-DFZSxm95A23E0b-sHif7OthoCQmQQAvD_BwE&hvadid=241627170717&hvdev=c&hvlocphy=9021760&hvnetw=g&hvqmt=e&hvrand=7692014818673609309&hvtargid=aud-840076997981%3Akwd-555060935&hydadcr=22595_10356262&keywords=strategies+and+tactics+for+the+mbe&qid=1583177627&sr=8-1
Once again, remember that this doesn't define you. This is one step in the process, and that's it.
Thursday, April 9, 2020
I've been trying to be good, really good at social distancing...especially with take-out drinks, particularly because I love ice tea in the morning.
I keep my distance from everyone, I wash my hands twice, once on entry and once on leaving, and I use my coat sleeves to open and close doors, etc.
A few weeks back, I thought I had "social distancing" down pat. I was a practiced expert, or so it seemed. Indeed, my run for take-out ice tea that morning was perfect. In fact, as is often the case, I don't notice any customers in the cafe that morning, and, after washing my hands twice, I rushed out of the restaurant to my car, ice tea in hand. That's when things got a little strange.
You see, I was in such a rush that I jumped into the driver's seat of the first white car I saw. Unfortunately, it wasn't my car. It was the car parked next to me. And, there was a passenger in the front side seat too. Wow was that strange! And embarrassing.
More than three weeks have now passed, and I can start to laugh about it because I haven't been sick (so I didn't get that person sick either). But I learned an important lesson. Pay attention to details. And, here's a lesson for you too. Lock your doors because you never know who might be parked next to you...it could be me!
Note: I'm not a fan of the phrase social distancing. I prefer physical distancing because I think - as a fellow human being - I owe everyone I see a friendly smile or at least an acknowledgment. Life is too short to not share it with others.
As such, distance doesn't have to be distant, not at all. So, as you keep your spacing away from others, let your hearts fill the gap. That's a great way to brighten the days of all you pass.
Tuesday, April 7, 2020
The last few weeks have been extraordinary in dizzying ways. A massive and abrupt shift to online teaching; a disruptive delay in administration of the bar examination; increased academic, professional, and/or personal responsibilities; fears for one's health or the health of loved ones; actual physical illness; loss of income; loss of planned employment or experiential opportunities; long-term economic uncertainty; social isolation and loneliness -- any one of these would be distractingly stressful to a student or teacher under ordinary circumstances, and many of us and our students are facing most of them simultaneously.
The saving grace has been the correspondingly extraordinary response -- demonstrations of grit, resourcefulness, generosity, and positivity -- that the situation has generated. Administrators and technicians working 16-hour days to keep classes and resources flowing. Educators implementing and sharing creative solutions to the problems of distance learning, and making special efforts to keep students engaged. Students accepting their changed circumstances with remarkable flexibility, increased effort, and gracious understanding. And, as a backdrop, millions of people, throughout the country and the world, working, sharing, and cooperating towards common goals.
But these last few weeks are really the first few weeks. To many they seem much longer already, but everyone -- law schools included -- faces an even more extended period of disruption and deprivation. That burst of energy and goodwill with which our students faced the initial transformation will have its limits. Even our own stockpiles of buoyancy and resilience are going to be threatened.
That is normal. It is really a form of culture shock, and as anyone who has experienced culture shock can tell you, there will be a cycle of highs and lows until we fully acclimate to our new world. We can all deal with these, one way or another, but the best way is with open eyes and thoughtful consideration. Expect at some point to feel exhaustion and discouragement in ourselves, and to recognize them in our students and colleagues.
Plan for it if you can -- be thinking ahead about when (soon!) you can take some time for yourself, and about how you can encourage your students to do the same. Classes will be over in a few weeks, exams a few weeks after that; a little downtime right about now, and then after exams are over, can help to stretch everyone's reserves.
Reaching out to others for support -- sharing or trading tasks, enjoying a little social time (like a virtual happy hour), or even just mutual commiseration about how tough it has been -- should be a little more manageable at this point, now that we have all familiarized ourselves with our new schedules, our formerly unfamiliar conferencing tools, and the proper guidelines for face-to-face-but-still-six-feet-away interactions.
And, most importantly, don't let the next plunge in spirits catch anyone by surprise. Let your students know -- gently, not with a sense of foreboding -- that it would be natural to start feeling low at some point, and that the feeling will not be permanent, and that you can be there for them while it lasts. Help them to focus on the tasks that will help them not only get through the next several months, but also accomplish things they will be proud to talk about years later. And remember that you will not be immune, and that taking care of yourself is another way to help you take care of your students.
Thursday, March 19, 2020
Some people wonder if "e-learning" is real. I poked around the internet and it looks like there are plenty of studies on both sides of the coin.
But I have to say from firsthand personal experience that I know that e-learning is real...and that it works. Here's the details (but please don't tell anyone because I'm embarrassed to tell the story):
Prior to my start in academic support, as a practicing attorney, I had a video-conference hearing in a courtroom in Colorado. I liked to be in the courtroom early, so, as I sat in the courtroom awaiting the judge, I noticed that the opposing party and her counsel were not present.
At that point, the judge came in, and, with the hearing set to momentarily start, the judge asked the courtroom clerk on the video-conference to go out and look for the opposing party and counsel. Before waiting for the clerk's response, I bolted upright and blurted out loud, "I'll go look for them. They might just be in the waiting room."
At that, the judge remarked: "Mr. Johns, you do know that Salt Lake City is a good 500 miles away from Denver, and that, while appreciating your willingness to help today, it might just be a touch too much to drive to the courthouse in Utah before the close of today's court session."
We all had a good chuckle, and I was mighty glad that no one but the judge (and the courtroom clerks in Denver and Salt Lake City) knew about my impulsive offer to leap to help.
Here's what I learned.
You see, even though we were having a video-conference courtroom hearing, it was as real as life to me. So real that I completely forgot about the geographical expanse - not to mention the massive Rocky Mountain ranges - that separated me from the opposing party and counsel on the other side of the case.
So is "e-learning" real learning?
Well, it sure can be. But it all depends on our willingness to perceive it as such, to make it work as well or even better than in-person learning, to actually be in the moment relating with our students in order to reach them wherever they are.
In my opinion, learning is a relational social experience. But, that doesn't mean that we need to be physically present in the same classroom with our students. Indeed, as I learned through my experience in "online" litigation, what happens online can be just as powerful as what happens in the presence of each other.
P.S. Please keep this story just between you and me!
P.S.S. Still doubting the efficacy of e-learning? Here's a quick blurb from a Penn State blog about one student's perspective on using zoom this week:
"Someone in my bio class with more than 300 students accidentally started talking about the professor, not realizing her microphone was on, so that made things a bit awkward. The chat feature is enjoyable. I have seen conversations ranging from Jesus to nicotine. I also received an email from my English professor reminding us to wear clothes. Of course Zoom isn’t ideal, but it is pretty effective given the circumstances." C. Nersten, Reviews: Zoom Classes, Onward State Blog, https://onwardstate.com/2020/03/17/os-reviews-zoom-classes/
...Reading between the lines, e-learning can be very effective, but it takes careful planning and curating by us, just like regular classes do...
Wednesday, March 18, 2020
Currently, all ABA accredited law schools have moved online. This means many of us are in new territory when it comes to working with our students. Some schools already have online or hybrid programs, but for many, this is completely new!
I've been hosting bar workshops and classes on zoom for awhile now. I wanted to share some things that I have found to be useful when teaching on zoom, as well as lists of resources I've compiled from elsewhere. (Elsewhere being our listserv and twitter, or through colleagues)
My own tips:
- If possible, ask that students leave video on. I find this works better to foster community, and you get better participation.
- However, they should mute their microphone when not talking. This one might be obvious, but even the sound of typing gets picked up on the microphone, and can be distracting to other students.
- The chat feature can be wonderful, but probably only in small groups. I find it works well if I have a workshop of under 20, but it would likely be distracting in a larger class. Its a great way for students to participate, or to keep track of questions until the end.
- I have found the polling feature to be a great way to get people to participate. Obviously this is best used for multiple choice style questions, but I think it can be used creatively for all manner of things.
- Share screen to share essay prompts, sample answers, power points- great! However, the white board is great in theory, but I find it hard to use. Maybe it's me, or my lack or artistic ability. Instead, I pull up a blank word document, which I find easier to create charts and graphs on, like I would in a non virtual classroom.
CALI (Center for Computer Assisted Legal Instruction)
- Living up to their name, they have provided a great list of resources for computer assisted instruction: https://www.cali.org/corona
- Academic Support, or law school success, CALI Lessons - written by yours truly, our very own editor Steven Foster, Renee Nicole Allen, Courtney Abbott Hill, Allie Robbins, Laura Mott, and Nicole Lefton. https://www.cali.org/category/1l-first-year-topics/law-school-success
And online learning guide from Roger William's and LawTutors' Brittany Raposa:
Suffolk Law's Sarah Schendel compiled a great list of resources on twitter:
and finally, an article about better focus with online learning:
If you have your own tips, or I've left out any great resources, please leave them in the comments!
(Melissa A. Hale)
Thursday, March 12, 2020
I brought my dog Maisey to school today. I know. That's not allowed. But sometimes rules are meant to be broken. I think today was that sort of day.
Today was my final in-person class, at least for several weeks due to COVID-19. And, because I had so many students prior to class email me that they were not going to make it to class because of COVID-19, I just had to act for those who came. And for me too, because I was feeling stressed too. So I did. I brought Maisey with me to her first law school class ever!
As I walked towards the school, I sort of felt like I had to sneak her in. But there's no sneaking around when it comes to a large, tail-waving dog. I was caught right away, and, to my surprise, with smiles everywhere we went. We still hid for a few minutes in my office until it was time for class. But then we walked into the classroom, in stride together, for Maisey's first college class ever. Oh the joy, when my students saw Maisey. The class lit up.
Here's what I learned from today's experience:
In moments like these, with more than 100 law schools switching to online learning midstream due to COVID-19, the most important things I can do for my students is to care with them, to show them that we will work through this together, to let them know that I will listen to them and learn with them as we move into online teaching, and to acknowledge that I am going to make mistakes along the way (but that's okay because, after all, it's in our mistakes in which the most important lessons are often learned).
After class, I had more students than usual stay late...to talk, to share, and to listen together. Maisey, on the other hand, just sat quietly on the classroom floor next to us - patient and happy just to be with us.
As many of us transition into online learning for the remainder of the term, take time to listen to your students, to talk with your colleagues, and to share your worries and concerns because law school is more than just a school; it's a community. It's our students' community. And, it's the community in which we are privileged to share in too. (Scott Johns).
P.S. Here's Maisey in her studious mode on her first day in college (but mostly she slept soundly!).
Tuesday, March 10, 2020
Just to be clear, law students are not dogs. Law students are people, full of humanity, volition, self-awareness, and agency. Dogs, in contrast, are full of caninity, impulsiveness, incomprehension, and opportunism. If a dog sees you after a one-week absence, she will yelp and leap excitedly, as if witnessing your literal resurrection from the dead. A law student, on the other hand, will just shrug, or perhaps nod, understanding that class only meets once a week, and that you are not killed and eaten by bears in between meetings.
Nevertheless, learning to be a better dog owner had helped me learn to be a better law student teacher, too. This is *not* because law students and dogs are similar. Law students have never bitten, drooled upon, or shed on me, and they do not think of squirrels as morsel-toys. No, what has helped has been the realization that I make some of the same mistakes with my puppy that I sometimes make with law students, but with dogs the consequences are more readily noticeable. Tula provides me with an immediate feedback loop that helps me realize the errors of my ways more quickly:
- Using inconsistent language. When I am walking my dog and she pulls ahead of me, I invariably find a variety of ways to show my disapproval. "Tula, come here." "Tula, back it up!" "Tula, no pulling." These all mean essentially the same thing to me, and, in a sense, they mean the same thing to Tula, as well, except from her perspective what they mean is nothing. Why? Because when I taught her to walk next to me, I told her to "Heel!". When I say "Heel!", she knows to walk alongside me. When I say "Back it up!", I might as well be speaking Orcish, and she merrily ignores me. Students are not so obvious when they are puzzled by a change in vocabulary, so I might not notice that I have confused them if I switch spontaneously from "meeting of the minds" to "mutual assent" without explanation. But an overeager German shepherd quickly promotes consistent terminology.
- Failing to spot trouble coming. A peaceful walk around the neighborhood can become a nerve-jangling melee of barking, yanking, and tangled leash if I do not notice the squirrel that my pooch has fixed her gaze upon or the approaching tween walking her poodle. Tula means well, but her fervent enthusiasm would lead her into trouble if I had not quickly learned to watch out for temptation. Law students, too, face hazards to their success -- substantive misunderstandings, time management issues, overconfidence, etc. --- but these dangers can smolder, unaddressed, for weeks or even months before finally leading to very visible, and sometimes catastrophic, misadventures. Having to learn to control a fanged furry beastie has impressed upon me the importance of spotting and dealing with trouble before it generates an emergency.
- Ignoring personality and mood. Every dog owner dreams of having the perfectly-behaved pet that responds instantly and consistently to every command, like a fuzzy predictable robot. I have seen a few of these animals -- they are really scary, like police K-9 dogs, trained through thousands of hours of repetition to such automaticity you can practically hear them barking, "I'll be back!" The rest of us all have to contend with real dogs. They mean well, really they do; but if your dog (like mine) is just a quivering bundle of excitement, then you have to accept that you cannot always turn your back on them after commanding them to sit. And if they are tired, or hungry, or frightened, then you have to adjust your expectations and adjust your guidance accordingly if you want to see the behavior you are used to seeing. If you don't, then you will see things go awry very quickly. Law students are not dogs, which have no control over the expressions of their moods or personalities; people, sometimes with very good reasons, can subdue their reactions. But those reactions matter -- they affect perception, motivation, and intention -- and their effects might show immediately, or might not make themselves clear until much later. A good teacher will attend to each individual student's personality and mood and adapt their teaching strategies to take them into account.
Dogs are terrible models for law students -- they do not read books, once one of them starts yapping they all have to jump in, and they would probably sleep through every class. But dog owners might have something useful to teach law professors.
Wednesday, March 4, 2020
The MPRE is around the corner for many students. If you are wondering when to take it, my personal advice is to give yourself at least 2 administrations before the bar exam. So, if you are taking the bar exam in July of 2021, take the MPRE in August or October of 2020.
As an exam it should be taken seriously. Many students don't get the score required for their jurisdiction because they thought it would be easy, and didn't study. While it's not necessary to devote a full time regimen to studying, you do have to devote some time to taking it seriously. The amount of time you spend depends entirely on each student.
While I can't tell you the exact amount of time you need to devote to the MPRE, I can give you some general tips.
First, pay attention to the call of the question. They are often very specific. A question may ask about "malpractice", or it may ask about "subject to discipline". In rare instances, the question may ask about whether the lawyer committed a crime, or if they are subject to sanctions. These all have different meanings, and it's incredibly easy to pick the wrong answer only because you read the call of the question too quickly.
For example, there are plenty of instances where an attorney is subject to discipline, and have clearly violated the rules of professional responsibility. However, the attorney will not be subject to liability, or malpractice, if there is no negligence. In that instance, the attorney must have breached a duty, and that breach caused an injury. While there may be times when an attorney violates a rule of professional responsibility AND was negligent, there are also plenty of instances where the attorney violated a rule, but the client suffered no damages. Be on the lookout!
Second, pay attention to the details of the question and the answer choices. Is it may or must? Should or can?
Generally, the MPRE tests the bright lines of the model rules of professional responsibility. This may differ from best practices. Often, in a professional responsibility course you are taught what an attorney should do, and you often analyze scenarios with grey areas. The MPRE is an objective test, so remember that they can't test the grey area.
Third, practice does make perfect. Don't rely on merely reviewing an outlining, or making flashcards. Practice, and review, as many practice MPRE questions as possible. Make sure you learn from each question. This will help you more than passively reviewing the model rules.
Finally, don't forget to do 1 or 2 practice tests, in a timed setting. You want to make sure you are OK on timing and stamina.
If you are taking the MPRE in March, now is a good time to start studying, if you haven't already!
Tuesday, March 3, 2020
Human beings -- of which law students are a subset -- are notoriously unreliable when trying to figure out what to worry about.
This is not to say that we cannot recognize potential threats in a general way; only that, because of the way we are hard-wired to process threats, we sometimes overestimate certain threats, which in turn can cause us to underestimate, or even overlook, other threats. An article in The Washington Post several weeks ago explained why the public and the media seemed to be more panicky about the new coronavirus than about other looming threats. The article did not suggest that the virus is not dangerous or shouldn't be taken seriously, but it did try to explain why it has been featured so prominently in public discourse, when other greater and more palpable threats to health, like influenza or poor nutrition, barely merited discussion. Among the reasons for this amplification of attention:
- "We instinctively worry more about new risks than familiar ones" -- perhaps in part because we worry more about things we cannot control, and things that seem new and mysterious also seem more out of our control.
- We worry more about things that remind us of other things that frighten us -- the way a new global pandemic might remind us of The Plague or any of a dozen science-fiction movies -- because that fear is more readily elicited.
- We tend to pay more attention to threats that other people are talking about, because we are social animals and we assume there is a reason that other people are anxious.
Again, the point of the article was not to suggest that the new virus did not merit any concern. It was merely trying to explain why, for example, people who were blasé about obtaining a flu shot might be terrified of a disease that (at the time) hadn't even reached their hemisphere yet.
In a similar way, law students can sometimes be hyperaware of the existence of a particular threat to their performance, but might devote so much attention to it that they neglect or even overlook other concerns that, in reality, might have a bigger impact on their grades and other outcomes. They might pay a lot of attention to the risks of failing at new tasks -- like writing case briefs or mastering IRAC format -- simply because they are new and mysterious, and perhaps at the expense of addressing more familiar and pervasive concerns like grammar or logical reasoning. Students who are afraid of, say, public speaking might devote inordinate attention to being prepared to recite case details if they are cold-called in class -- as if the professor were planning to determine that student's grade for the course based on one recitation -- and in the process those students may not have the time or energy to try to extrapolate deeper implications from the case or to fit it into a larger picture. And if it seems like the rest of the class is saying that a particular resource or exercise is the key to acing a certain class, how many students are going to be able to resist the call of that bandwagon, even if a different resource might be more effective for them?
The things our students worry about, they are probably justified in worrying about them. But sometimes the way they worry about them might draw their attention from other threats to their performance that deserve more emphasis, more consideration, and more action.