Thursday, December 6, 2018
Want to power up your learning to improve your final exam performance? Well, counterintuitively, that means that you just might need to take a break - a brief respite for your brain - by working out your heart instead.
You see, research shows that vigorous exercise, even if just for 10 minutes right prior to an exam, improves academic performance. And, there's more great news. The research also shows that exercise boosts your mood and optimism, and that, in turn, leads to more resiliency in learning, which, in turn again, improves academic performance. In short, exercise is in the center of a great big circle of connections between your body, your heart, and your mind.
So, rather than just focusing all of your energies in preparation for exams on your mental work, let your body and heart take up some of that cognitive load as you sweat it up a bit. Feel free to hit the trail, or the bike, or just run up and down the stairs at your law school every hour or so. Indeed, as the research shows, even just a 10 minute exercise brain break right before your next exam can increase your exam performance. Not convinced? We'll, here's a handy article by Marcus Conyers, Ph.D., and Donna Wilson, Ph.D., entitled "Smart Moves: Powering up the Brain with Physical Activity." http://www.kappancommoncore.org
So, why not follow the evidence to help boost your learning by taking frequent exercise brain breaks - breaks that tap into the power of your whole self - your mind, body, and heart - to best optimize your learning. And, rest assured as you take your brain breaks while exercising, the science is behind you. (Scott Johns).
Tuesday, December 4, 2018
At this time of year, I am working mostly with two groups of students: 1L students preparing for their first set of law school final examinations, and recent and soon-to-be graduates who are planning to take the February bar examination. While these two cohorts are about as far apart as students of law can be, there is at least one common element to their experiences: the peril associated with reaching a goal.
Regretfully, some of those preparing for the February bar exam, at my school and elsewhere, are graduates who have already taken the July bar last summer and did not pass. Every year, people who find themselves in this position include some strong law school performers, people with GPAs and other indicators that suggested that they should not have had any problem passing with their classmates. Sometimes, their disappointing performances can be explained by extenuating circumstances, like illness. But other times, it just appears that the new graduate only put in a fraction of the effort needed over the summer to prepare for the bar exam -- e.g., having signed up for a bar preparation course, they completed less than half of the assignments. Few people would stand a chance of passing the bar with so little preparation.
Observers of such misguided lack of effort might attribute it to overconfidence -- good students mistakenly believing their law school performance was preparation enough. Maybe it seems like that even to the disappointed graduates, shrugging their shoulders and otherwise unable to explain just how they had let 10 weeks get away from them without applying themselves to their studies as they had in the past. But perhaps for some there is another, less self-condemnatory element at work. Consider this: in the two or three weeks before bar studies were to begin, these students had just completed probably the most grueling three years of study of their lives, and it had all culminated in proud marches across the graduation stage. They had reached the finish line at the end of a very demanding course. But, as Gretchen Rubin notes in her book Better Than Before, "A finish line marks a stopping point. Once we stop, we must start over, and starting over is harder than continuing. . . . The more dramatic the goal, the more decisive the end -- and the more effort required to start over."
We see examples of this all the time. People who exercise scrupulously to lower their weight to a target goal -- and then stop exercising and gain back the weight. Writers who work diligently every day to complete a long-term project, but then lose the daily habit once the project is complete. Surely at least some portion of those capable law school graduates who did not put in the effort they might have made to prepare for the bar had at some level seen their final final exams and their pompously circumstantial degree conferment as manifestations of a very dramatic conclusion, and then found themselves at a psychological disadvantage in trying to start, in bar preparation, what seemed to them a brand new test of willpower, tenacity, and capacity.
This suggests that one way to help some of our 3L students prepare to jump right into the huge bar preparation undertaking is to message it not as a novel ordeal, but as just one more step toward the ultimate goal of practice. We might also downplay the significance of their spring final exams -- liberally reminding our students that those will not be the last exams they ever take -- and even minimize the ceremony of law school graduation, by pointing out to them that the real endgame is the swearing-in ceremony. The more psychological continuity that students cultivate between law school and the bar examination, the more likely they will be able to carry over their habits of diligence and fortitude into the bar study period.
This kind of messaging might also be helpful to some of our 1L students right now. They are not yet near graduation, but no set of final exams before the last seems more momentous and conclusive than the first set at the end of the fall semester. Students who have the perspective to see this first set of exams as just one of six may be less like to feel that they are psychologically starting over again in the spring. Conversely, those who more explicitly see these exams as a finish line -- students who tell themselves, "If I can just get through these . . .", or those who seem to focus on the weeks off between semesters as a sort of quasi-retirement -- may not have as much momentum going in to classes in 2019, and may struggle to bring themselves back to the same level of diligence they had reached in the fall. Bringing to these students' attention the long-term effort required in law school, and the expectation that what they learned in that first semester will be needed again and again through graduation, the bar exam, and practice, may help them find getting back into reading, briefing, and studying in January is just that much more achievable.
Thursday, November 29, 2018
As indicated in yesterday's wonderful post by Professor Nancy Luebett, one of the key steps for successfully preparing for final exams is to practice final exams. https://lapproaching-your-first-law-school-final.html. And, the best sources for practice exams are your professors' past exams.
But, what if your professor is new to the law school or there simply aren't many old exams available?
Well, there are a number of sources for free practice essay problems.
Here are a few to get you going:
First, you might dig into essays published by the National Conference of Bar Examiners (NCBE). The NCBE maintains links for a number of retired past essay questions that are available free of charge (the more recent are only available by purchase). I recommend sticking to the free materials. Each essay question packet also contains analysis of what the examiners were looking for in good quality answers, so the materials are quite helpful in assessing and improving your own problem-solving abilities. Unfortunately, the essays are not easily identified by subject matter. It requires a bit of trial and error to match up the subjects that you are taking as a first-year law student with the essays asked in the past on that subject. But, below is subject matter table that can help. Just find the subject and the bar exam month and year that it was tested and then find the bar exam question and answer packet for that particular bar exam using the following link: http://www.ncbex.org/exams/mee/preparing/
Second, if you want to work through a number of shorter hypothetical essays, the University of Denver maintains - free of charge - a repository of retired Colorado bar exam essays. But, please be careful as the law might have changed. You'll notice that the essays are arranged by exam date and then again by subject matter. And, there's more great news. The essays contain point sheets with short answer discussions to help you assess your own learning. Here's the link for the old Colorado essays: https://www.law.du.edu/coloradoessays
Finally, I like to look through past California bar exam essays. California provides both past bar exam essay questions (with good passing answers) along with first-year law student exam questions. The first-year law school questions cover contracts, torts, and criminal law. But, please be aware that the answers provided are not model answers. Here's the link for past California first-year exam essays and answers: http://www.calbar.ca.gov/pastfirstyearexams. In addition, here's the link for past California bar exam essays and answers: http://www.calbar.ca.gov/pastbarexamessays
One last thought...
No one learns to fly or play the piano or dance...without practice...lots of practice.
Similarly, to prepare for final exams takes practicing final exams. So, instead of re-reading your notes or memorizing your outlines, focus first and foremost on taking your notes and outlines for practice test flights, using them as your "go-to" tools to work through lots of past exam questions. And, along the way, guess what? You'll actually begin to memorize your notes and outlines because you've been using them as learning tools rather than rote memorization tools. Good luck on your final exams! (Scott Johns).
Wednesday, November 28, 2018
Treat your first law school final exam as an opportunity to show your excellence in thinking and writing like a lawyer. Here are some guidelines for the coming weeks.
Put together the final pieces:
- Learn your professors' individual preferences. Should you use IRAC, IPRAC, CIRAC, or another organizing structure? Does your professor favor headings, abbreviations, or use of case names? Tailor your writing to their predilections.
- Take practice exams. Use the professor's previous exams if available, but any exam with complex fact patterns and multiple issues will be useful. After writing your answer, set it aside for a time, then evaluate it, treating it as if it were written by a stranger. Peers and professors can provide useful feedback.
- Distill your outline down to a one-page issue checklist or "attack outline" you can handwrite in 2-3 minutes. Memorize it.
- Gather the items you want to bring to the exam room, and make sure you understand what is permitted. Common items include power cords, earplugs, watches, cough drops, and water bottles.
- Don't stay up late cramming, because exhaustion hampers your ability to analyze. Do something fun for a few hours before bed and get a solid night's sleep.
- Give yourself plenty of time to get to the exam: you don't need the anxiety of fearing you'll be late. And, remembering Hofstadter's Law, then give yourself more time than you planned.
- The hours before the exam are for you and you only. Talk with classmates if you like, but don't feel you have to be sociable.
Approach the exam with confidence:
- "Brain dump" (3 minutes). As soon as the exam starts, jot down your issue checklist from memory, or read through it carefully if the exam is open-book. Starting the exam with the issue checklist in mind prevents panic and helps you approach the exam from a position of knowledge and confidence.
- Skim the exam and allocate your time (3 minutes). Look over the entire exam, noting the number of questions and the points or suggested time for each. Allocate your time according to the number and weight of questions. Write down the ending time for each section.
Devote quality time to reading and organizing:
- For each question, read the call of the question first to make your reading and issue-spotting more efficient.
- Read multiple times to spot issues and identify relevant facts. On the first read, immediately jot down the issues as you recognize them. Then read the fact pattern line by line, looking for relevant facts in every sentence. Mark every relevant fact and identify the issues, elements, or defenses raised by these facts.
- Consult your issue checklist. It may alert you to issues in the fact pattern you did not previously notice.
- On essay problems, spend 1/3 of your time reading/marking the fact pattern and outlining your answer. Don't rely on cut-and-paste to organize. Your exam outline can be sparse, consisting of just the issues, elements, and facts relevant to each. Don't waste time writing rules in the outline: save that for your written answer. Time dedicated to careful reading and outlining helps you craft a well-organized, thoughtful answer.
Show your excellence in essay answers:
- Follow instructions: they are vital, not surplusage.
- Make your answer easy to follow. Use headings for major issues. Treat issues and elements in logical order. Write simply and clearly.
- Think inside the box. Thoroughly discuss each issue before moving on to the next. For instance, don't let a discussion of the mailbox rule creep into a paragraph about consideration.
- Stick to the facts, and make sure you have them correct. Distorting the facts can make you miss issues entirely.
- Interweave specific facts with the rule. Instead of blanket assertions ("Alonzo's actions show Alaska was his domicile"), interweave parts of the rule with specific facts ("Alonzo's intent to remain in Alaska was shown by him buying a house and voting in local elections.")
- Use IRAC (or the organizing structure your professor prefers) for each issue. When resolving an issue requires detailed discussion of several elements, use mini-IRACS or sub-IRACs to work through each element's requirements.
- Issue -- Ask a question: if you conclude first, you may disregard facts or law that don't support your preconceptions.
- Rule -- Be concise but thorough. State the rule before, not midway through, the analysis.
- Analysis -- Explain how the rule applies to the specific facts. Explore any ambiguity in the law and the facts by going down each "fork in the road."
- Conclusion -- Limit your conclusion to one sentence; don't bring in new arguments or restate your analysis ad nauseam.
- Omit needless paragraphs and issues. Nix any introductory paragraph that merely restates the facts. Discuss only issues that arise from the fact pattern. This is not the time to regurgitate everything you know just because you know it.
- If it's hard, that's where the points are. Rejoice when an issue is difficult or when the facts or law seem ambiguous. Here's where you get to strut your stuff!
- Keep track of your time, and move on. If you find yourself running out of time on a question, concisely treat the most important remaining issues, then move to the next question.
After the exam, let it go. Don't fret or dwell on mistakes. Avoid discussing the exam with your classmates, for someone in the group (maybe you, maybe a friend) will always leave dispirited after such a conversation. Take several hours off, then tackle the next challenge with confidence. You are now one step closer to achieving your goal of being an excellent lawyer. (Nancy Luebbert)
Tuesday, November 20, 2018
Law students about to head into their final exams -- especially those in their first year, facing this challenge for the first time -- are often weary, anxious, and despondent. Simultaneously burdened with too much to learn and too little time, they may feel like the universe is conspiring against them. And some of them, in a sense, may be right.
The tilt of the Earth's axis and its movement around the Sun are responsible for our seasons, and, by chance or design, fall semester exams take place just as we are sliding into the winter solstice -- the day on which we in the Northern Hemisphere have the shortest day and receive the least amount of sunlight. Two years ago, when I was teaching in Southern California, we received just under 10 hours of daylight on the solstice (December 21). Now that I'm teaching in Buffalo, New York, we're already down to only 9 1/2 hours of daylight, and we'll get down to only 9 hours of light and 15 hours of darkness before the sun starts coming back. It is little wonder that folks in the higher latitudes experience more instances of Seasonal Affective Disorder.
Seasonal Affective Disorder, or SAD, is a recognized mood disorder in which sufferers experience mood distortions -- most commonly, depression -- at particular times of the year. Most commonly, these symptoms peak in the wintertime, and while the causes are not well understood, it seems very likely that the diminished amount of sunlight is a key trigger. This may explain why SAD affects 8-10% of the population in states like New Hampshire and Alaska, but only 2% of the population in Florida. Overall, about 6% of U.S. adults suffer from full-blown SAD, and another 14% suffer a milder, "subsyndromal" version. This means that, on the average, one out of every five people -- including your students -- are clinically affected by the oncoming gloom.
When SAD manifests, as it usually does, as a type of depression, its symptoms (and those of its milder variant) are those of depression, including low energy and motivation, feelings of helplessness, withdrawal from social interaction, oversleeping, and difficulty concentrating or making decisions. Any one of these symptoms would be a serious obstacle to success on final exams. To have to bear a whole cluster of these decisions, on top of the intensity, stress, and anxiety normally experienced in law school, can be potentially debilitating.
Thus, it is important for Academic Success educators to observe their students with particular care as the autumn gloom descends. Students who had seemed poised and optimistic in September might start to appear morose, scattered, or resigned as finals approach. Of course, finals themselves can have a depressive effect, and after a semester of hard work, even the most buoyant student might be observed to sink a bit. That is normal. But if a student seems to be so down that it is pervasively affecting the quality of their work, consider offering the following suggestions:
- Light: One reason that the diminished rays of the sun are felt to be a key trigger is the strong evidence that light therapy -- regular additional exposure to direct sunlight or to specially-made artificial lamps -- has a beneficial effect. Spending additional time outdoors can provide the necessary sunlight supplement -- if winter clouds do not interfere. If the weather doesn't cooperate, light therapy lamps can be purchased online or in department and specialty stores for less than $50. Either way, 30 to 60 minutes of extra light every day -- something that might be easily done while studying -- often helps SAD victims recover (particularly when combined with other treatments, as listed below).
- Exercise: Moderate aerobic exercise also appears to be helpful, particularly in combination with light therapy. A walk outdoors or a 20-minute run on a treadmill under the glow of a light therapy lamp provides better relief than just light alone. Exercise provides other benefits to students approaching the finals ordeal. Regular workouts can alleviate stress and improve concentration, so a student with SAD who exercises and uses a light therapy lamp every day may actually end up in a better position than they were before they were affected by SAD.
- Professional treatment: Students contending with a particularly nasty manifestation of SAD -- one that does not improve with light therapy and exercise, and that causes feelings of worthlessness or thoughts of self-harm, or prevents a student from attending class or from undertaking basic preparation for exams -- should be referred or encouraged to seek professional help. Counselors can provide talk therapy, and physicians can prescribe drugs that, in conjunction with exercise and/or light therapy, may provide additional help in overcoming SAD.
The good news is that, since SAD is seasonal, almost everyone suffering from it in November will probably get over it by February, as the days start to lengthen after Christmas passes. But to help them get to that place, we sometimes have to help students recognize that they are suffering from a treatable condition, and we have to help them find the solution that works for them.
Wednesday, November 14, 2018
Mrs. Ryan would be surprised -- and happy, I hope -- to know that the principles I teach 1Ls come straight out of my seventh grade English class.
Marilyn Ryan was smart, demanding, and talented -- the epitome of a good teacher. The first day of seventh grade, she told us, "You're supposed to study grammar in high school but you probably won't get more than a smattering. So this year I'm going to drill grammar into you because you'll need it. It may not be fun right now, but you'll be glad later on." (She was right, by the way -- none of my high school or college teachers ever taught grammar.) So, in addition to enjoying and dissecting great English and American authors, we spent seventh grade diagramming sentences, learning parts of speech, and mastering grammatical rules. During class, Mrs. Ryan would often refer to Strunk and White's classic book, The Elements of Style. And so it was that I was introduced to one of my favorite paragraphs in the English language, from William White's Rule #13, "Omit needless words." White explained his elementary principle this way:
Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.
"Omit needless words" and "[M]ake every word tell." It's clear how writing vigorous prose is useful in practice, in legal writing class, and in practice exam answers, but making every word tell is also, I submit, the key to effective outlines. I find that most 1Ls over-write their outlines. They are so afraid that they will leave something important out that they create monstrous "outlines" which not only record all the nuances of what was covered in class week by week but also add long excerpts from case briefs and sometimes material from hornbooks and other outside sources. Often long quotations from cases and Restatements are pasted in verbatim. Creating a comprehensive record of the class can be a useful source document for students who want to make sure they haven't missed anything in class, but such a long, comprehensive "outline" is virtually useless for preparing for final exams.
It's more useful to think of an outline as a guide for solving a legal problem: in the law school context, this means the outline is a guide for taking an exam. When you approach an outline this way, the excess falls away, including long explanations of historical context, excruciatingly detailed statements of the facts in cases, and long quotations from Restatements and cases. What replaces the verbiage is a structured framework for what issues to address, the order in which to address those issues, the major rules, sub-rules, and elements needed to address the issues, and enough concise examples and context to help you spot the issues when they appear in a problem. In essence, by doing this you are pre-writing your exam, absent the specific facts the exam will supply.
It's especially helpful to write rules in your outline in the same manner in which you plan to write them on the exam. Many students are afraid to put rules into their own words in the outline: they copy rules from cases, restatements, or other sources because they are afraid they might miss the nuances of the rule, or they feel it takes too much time learn the rule well enough to put it into their own words. But that is "stinking thinking." You have more time during the fourteen weeks of the semester than during the three hours of the final. If you thoroughly digest rules well enough to put them into your own words in the outline, you will remember that phrasing during the final; otherwise, you'll waste precious time and mental energy during the exam struggling to translate obtuse phraseology from the outline into a concise sentence that captures the law -- time better spent applying law to the given facts. So prune and make every word tell so your outlines can be the best possible guide for taking your exams. (Nancy Luebbert)
Tuesday, November 13, 2018
I have learned probably hundreds of tips, tricks, and techniques to improve one's performance on examinations. But there is only one that I learned with ten million people watching.
In 2005, I took the Florida Bar Exam -- my second bar exam, after passing the DC Bar Exam seven years earlier. When I returned to my car, the lone message waiting for me on my cell phone was not the expected call from my family. Instead, it was Glenn, from Culver City, California, calling to inform me that I had been selected to be a contestant on Jeopardy! -- the fast-paced quiz show in which contestants vie to answer 61 questions in 22 minutes.
The taping was to be in a month, and so I went right from cramming for the bar to cramming for trivial warfare. I knew there was no way I could study every possible subject that might come up on the show. At the same time, I felt like I ought to be "training". Today, there are websites that archive years of Jeopardy! clues, and old episodes on demand on Netflix, but these weren't available in 2005, so my main source of practice was watching the daily broadcast of the show at 7:30 p.m. And, perhaps because I felt that it was a rather precious resource, I decided that I wasn't just going to casually sit on the couch and shout out responses with the contestants. I decided that I was going to act like a contestant. Each contestant stands behind a podium and holds in one hand a pen-sized electronic button, and the first person to press that button after host Alex Trebek finishes reading the clue gets the chance to give the response -- famously, in the form of a question (e.g., "Who is George Washington?"). So, for a month, I tried to simulate their actions. I watched the show standing up, behind a living room chair. I held a clickable ballpoint pen, and practiced pressing the top button after Trebek finished reading each clue, and only then did I allow myself to call out a response in the form of a question. From time to time, I would feel a little goofy doing this, thinking, Isn't the show really about what you know? But I kept at it, because it seemed like the only way to really practice.
Finally, I arrived in California for the taping. Jeopardy! tapes five episodes in one day, a couple days every few weeks, so on the day on which I was scheduled to tape, I was herded into the studio with about a dozen other contestants. We spent a few hours signing documents and having make-up applied and learning all the rules and, most important and exciting, playing a few practice rounds on the set to familiarize ourselves with the equipment. I noticed some of the other contestants -- all clearly bright and as delighted as I was to be there -- seemed slightly awkward behind the podium. We all knew intellectually what to do, of course; we had all been fans watching the show for years, and we had just received a thorough briefing on what was expected of us. Even so, some contestants struggled to push their electronic button at the right time -- pushing it before Trebek was done talking would lock you out so that you could not answer, but if you waited too long, someone else would get in before you. Others got the hang of the button, with concentration, but then could not remember the responses they were trying to give. And there were times when contestants would press the button correctly, and give the right response, but forget to give it in the form of a question.
But when I went up on stage to practice, it was like I was standing back in my living room. I had practiced the timing of pushing my pen button so many times that, when it came time to press the real thing, I did not even have to think about it. I rang in quickly, focused entirely on recalling the information needed, and then gave the answer automatically in the form of a question. It worked in practice, and it worked in the actual taping. Yes, the show is about what you know, but it's important that nothing hinder you from demonstrating what you know. I won four games, and eventually came back to be a finalist in the Tournament of Champions.
In the years since, I have learned that what I had stumbled onto is known as "simulation training". It is a kind of practice that is not unlike the physical training that athletes do to develop muscle memory and automatic responses. In the context of quiz shows and law examinations, though, what makes simulation training particularly useful is not just the physical skills that it develops. What makes it useful is that it frees up mental space and focus for more complex thought. Not having to think about when to push the button and how to phrase my answer enabled me to devote full attention to reading the clue and retrieving the correct response.
Practicing to take examinations -- whether final exams or Bar exams -- can provide the same kind of simulation training, under the right conditions. Of course, students should write practice exams for other very good reasons, like improving legal analysis and uncovering weaknesses in subject matter knowledge, because law examinations should also be about what you know. But there is an added benefit when practice exams are done under conditions that imitate expected exam conditions. There are dozens of details and stimuli that students encounter consistently during an actual exam that, if unfamiliar, can demand valuable thought or cause detrimental distraction: dressing comfortably, locating a seat, timing bathroom use, logging into ExamSoft, calculating timing targets, contending with silence or noise, reading and following directions, cutting and pasting text, properly submitting responses, etc. Encouraging students to incorporate attention to these elements during their practice work, even when they are not really necessary, can help them improve performance, not because performance depends on finding a proper seat, but because being able to do so with almost no thought allows them to devote their mental energies to the tasks that really need them. Exam performance is about what you know, but it is important that nothing hinder you from demonstrating what you know.
Thursday, November 8, 2018
I'm worried about final exams. To be frank, I don't like the word "final." I have to say that the word "final" particularly bothered me in my previous aviation career, where air traffic controllers clear airliners for the "final approach to runway 18." I just didn't want that to be my final approach. I hoped to have at least a few more years in aviation.
But, here's the biggest rub that I have with final exams.
Because law students frequently have only a few mid-term exams to assess their learning (and to therefore improve before their final exams), final exams are, well, too final to make an improvement in one's learning. In fact, I suspect that the term "final exams" tends to lead to more of a fixed mindset with respect to our law students' learning. They get their grades, often weeks after finals, and most students - it seems - never review their exams to identify what they did that was good (nor to look for ways to improve in the next round of final exams).
Nevertheless, it's not just final exams that can be a hurdle in improving learning for the future.
Our feedback can be too.
As summarized by Jennifer Gonzalez in her blog "The Cult of Pedagogy," where she writes that "[r]eally, the experience of school could be described as one long feedback session, where every day, people show up with the goal of improving, while other people tell them how to do it. And it doesn’t always go well. As we give and receive feedback, people get defensive. Feelings get hurt. Too often, the improvements we’re going for don’t happen, because the feedback isn’t given in a way that the receiver can embrace." https://www.cultofpedagogy.com/feedforward/. In short, feedback might just stunt growth, which is another way of saying that feedback might stunt learning.
But, there's great news!
Rather than providing our students with more and more feedback, we might consider providing them with "feedforward" instead.
But first, here are the problems with feedback. Feedback focuses on the past. It focuses on the negative without necessarily providing ways forward to improve. It focuses on being stuck rather than helping people get unstuck. Indeed, as outlined by Jennifer Gonzalez, there are at least three ways that feedback hinders learning:
• First, citing to author and educator Joe Hirsch, feedback shuts down our "mental dashboards." In my words, it crashes our brain. That's because the "red marks" and the many comments to "change this" or to "change that" tend to cause us to believe that all is lost; there's no hope for us. We just don't see a way forward because, frankly, we are stunned with a horrible feeling that we just don't get it...and never will. We are locked in the past. The future is hidden from us.
• Second, citing again to Joe Hirsch, feedback tends to reinforce negative thoughts because the comments tend to lead us to believe that we are stuck in a sort of "learned hopelessness" in which we cannot change our future. Rather than building a growth mindset in our students, feedback that is focused solely on what our students have done in the past creates a fixed mindset with students believing that there's little that they can do to improve their learning in the future.
• Third, citing again to Joe Hirsch, we tend to approach feedback with a single-minded crystalized focus to see what grades or marks or numbers we received (rather than seeing feedback as providing us with helpful and hopeful positive tools forward to achieve better grades in the future). In short, despite all the feedback given, students tend to see and internalize their grades first, and, because first impressions lead to lasting impressions, feedback often falls short in producing improvements in learning for future assessments. Too often, the grades on feedback crystalize into final exam grades, too.
In contrast, "feedforward" focus on the future. It takes the work of today and provides insights, comments, and tips framed in a communicative, generative way that leads to improvement in the future. It is forward looking; never backward looking. Feedforward believes in the future - a bright future - and provides particular ways for our students to move forward towards that future of improvements in their learning.
So, what is "feedforward?"
Simply put, it's coaching students about their current performance with heart-felt questions and insights that get our students thinking for themselves about how they can improve their learning for the future.
Curious? Rather than going through the six steps in providing helpful "feedforward" to our students, let me just point me to you the steps as cited by Jennifer Gonzalez in her blog article about "Feedforward," available at: https://www.cultofpedagogy.com/feedforward/.
And, one last thought...
As academic support professionals, this month is a great opportunity. In particular, nothing really needs to be "final" about final exams. That's because we can provide our students with opportunities to receive positive "feedforward" well before final exams - via practice exams, exam writing workshops, academic support small group tutoring sessions, etc. - such that our students will learn to improve well before they take their final exams. Indeed, the key to a great final exam experience is to have great "feedforward" experiences on the way to taking final exams. So cheers to the future - our students futures! (Scott Johns).
Wednesday, October 31, 2018
A note arrived in my office last week. It said, "Thank you for believing in me when I didn't believe in myself. I do belong here." I doubt the most experienced academic support professional could have received such a message without getting a little misty-eyed. For me, this note helped turn a sad time into a day of joy.
Later that same day, I talked with a law student who has earned a Ph.D. in the university of hard knocks. If ever a person had reason to be embittered by the hand life dealt her, it would be this woman, but instead she radiates joy. She's a true friend to her classmates, the custodians, the dean, and everyone in between. She mentioned keeping a gratitude journal, so I asked about it. She told me the last thing she does every evening is write in a gratitude journal. She keeps each entry short -- just a sentence or two. She said the gratitude journal profoundly affects the way she looks at life. "I won't lie," she said. "Some days it's been hard to write something in there. But even on the worst days there's always something to be grateful for. It makes my life better to think about this every day."
Gratitude transforms lives -- not only the life of the person receiving the thanks, but even more the life of the person who is grateful. Consciously choosing joy can change your outlook on school, work, and life.
Most of us entered law school (whether two months or forty years ago) because we wanted to use the power of the law to help others. But law school and law practice have a way of dragging us down. Stress piles on -- from lower-than-expected evaluations, heavy workloads, pointed critiques, looming deadlines, and the sheer mental effort of constantly being logical and analytical. We end up swathing ourselves in a suffocating miasma of negativity. Our optimistic mission of serving others devolves into a pessimistic, painful grind of grubbing for grades instead of reaching for understanding, of grasping for prestigious positions rather than seeking opportunities to be of service.
Like the penetrating sunshine, consciously practicing gratitude can help dispel the miasma by recharacterizing our experiences. An extra-long homework assignment turns from a chore into an opportunity for effective reading; a heavy work assignment turns from a burden into a chance to practice efficiency. Professors' comments in class turn from cutting criticisms into helpful critiques which will help us become better lawyers; interactions with challenging peers turn from obnoxious situations into practice in people management skills.
In a famous TED talk, Amy Cuddy discusses how adopting a powerful body language can actually help you feel and act empowered. Likewise, consciously spending time being grateful will turn you into a happier, more positive person. In her practical book, A Short & Happy Guide to Being a Law Student, Paula Franzese writes, "Say thank you countless times a day. . . . Your day will move in the direction of your focal point. Focus on the good in your midst and the good to come."
Here's a concrete suggestion for 1Ls worried about fall semester finals -- look forward to your finals with gladness instead of trepidation. After all, you don't have to take exams. You get to take exams. You have the opportunity to strut your stuff by showing your professor -- and yourself -- how much you have learned in a few months and how far you have progressed on the road of thinking, writing, and acting like a lawyer. And that is definitely something worth celebrating. Write it down in your gratitude journal and rejoice in another great day. (Nancy Luebbert)
Tuesday, October 30, 2018
To lawyers, law students, and professors, the IRAC formula is as commonplace a tool as yellow highlighters or The Blue Book. Some may tout or prefer one of its dozens of variations, particularly in specific situations, but at heart, they all do the same basic job of providing a reliable structure for building an argument. It may take some time for students to internalize that structure and use it consistently. Once they do, however, some students lean on it heavily, as a way of making sure all the expected components of their analysis (Issue, Rule, Application, Conclusion) are included. Other students may see it with more anxiety, as a set of expectations imposed by certain professors; they may worry that if they don't use IRAC, they won't receive full credit in their essay responses.
In either case, students can sometimes be stymied when trying to adhere to IRAC format in an essay test response that requires multiple pieces of analysis, like a rule with multiple elements. For example, trying to fit a discussion of a negligence claim into one big IRAC paragraph -- as some students may feel they are required to do -- may start off well, as the student correctly identifies the question of negligence as the issue and the requirement to show duty, breach, causation, and damages as the rule. But then the application section may become messy, as the student tries to write about each element. If more than one element depends on tricky or subtle facts, or if there are multiple arguments and counterarguments to some elements, then the student may struggle to control multiple threads of analysis, without additional structure, in an enormous paragraph that spreads over two or three pages. The student may lose some of those threads, and so might the reader.
This is an unsurprising consequence of the emphasis on sticking to an overall IRAC format: students, for comfort or consistency, might feel compelled to turn every argument into a unitary IRAC. This may be less of a problem for long-term projects, like a legal research and writing memo, where a student may be given more instruction about formatting and will have opportunities to rewrite and edit their essays. But on a timed assignment, like a final exam, the urge to create one big IRAC argument -- or the fear of not doing so -- can slow students down and inhibit clarity.
One way to help students improve their relationships with IRAC is to point out that a well-reasoned argument can have layers of IRACs built into it. The Application portion, after all, is where the meat of the analysis appears, and if that analysis requires that the student examine multiple elements, each element could be discussed in its own separate sub-IRAC paragraph. To use the negligence example:
Issue: Negligence claim
Rule: Duty, Breach, Causation, Damages
Rule1: [e.g., Obligation to act as reasonably prudent person under circumstances]
Application1: [Application of rule to specific facts]
Conclusion1 re: Duty
Conclusion2 re: Breach
Conclusion re: Negligence claim
This layering of IRACs allows students to take advantage of the order imposed by the format, while still providing the flexibility to address separate sub-issues separately. Theoretically, the layering could continue indefinitely, if certain elements have sub-elements to consider:
Rule3: Actual cause and Proximate cause
Issue3A: Actual cause
Conclusion3A re: Actual cause
Issue3B: Proximate cause
Conclusion3B re: Proximate cause
Conclusion3 re: Causation
This layering of IRACs may not always be the most artful way to organize a legal discussion, but in an exam situation in which students are trying to maximize speed, completeness, and clarity simultaneously, it can provide an efficient way for them to put together a complex analysis.
Thursday, October 25, 2018
My dog loves rabbit trails. Luckily for the rabbits, at least thus far, the trails have never led to rabbits.
That got me thinking about exam writing and rabbit trails.
But first, a bit of background...
I find that most bar exam takers who do not pass the bar exam write brilliantly well-organized professional essay answers. The rules are crisp; the IRAC is polished. But, in most cases, some of the answers are unresponsive to the fact patterns at hand. In other words, its as though the fact patterns were irrelevant to answering some of the particular essay questions. Instead of finding the "rabbits" in the essays, they followed "rabbit trails" leading to no where. And, it's often that way on law school exams too.
Take this summer's first essay question on the Uniform Bar Exam (UBE), available free-of-charge at https://www.ncbex.org/July2018Essays.
The fact problem was set in the world of constitutional law. As specified in the fact problem, the essay expressly indicated that US Supreme Court had recently found that Congress was within its power under the interstate commerce clause (ICC) to punish marijuana use. On the other hand, the fact problem indicated that a number of states were (and have) legalized marijuana use both for medicinal purposes and recreational purposes.
Frustrated by state decriminalization of marijuana, the fact pattern specified that Congress enacted a federal drug abuse prevention statute. Pertinent to the essay problem, one section of the statute required state law enforcement officers to investigate whether anyone within their custody, even on matters unrelated to controlled substance violations, was under the influence of marijuana and then make reports to the federal government. The other section of the statute, as specified in the fact pattern, provided that Congress would restrict federal law enforcement grants to states which decriminalized marijuana use. The fact pattern went on to indicate that a State had recently decriminalized marijuana use and would therefore be subject to a loss of approximately $10 million dollars in annual federal grant money out of a state budget of about $600 million total of state law enforcement spending. Based on this fact pattern, bar exam applicants were told to analyze whether each of these two statutes were constitutional as applied to this particular state's situation.
Let's deal with the first statutory section - the federal requirement ordering state law enforcement officers to conduct investigations and make reports. The key to figuring out where to go, i.e., to avoid the "rabbit trail," was to write out a good issue statement, perhaps as follows:
"The issue is whether Congress had constitutional authority when it requires state law enforcement officers to conduct investigations and make reports unrelated to state law enforcement purposes."
In this fact pattern, there's no issue that Congress did not have the commerce clause power because the fact pattern foreclosed that issue, once and for all, with its initial recognition of US Supreme Court precedent specifying that Congress had the power to regulate marijuana use. And, if Congress has the power to regulate marijuana use, it certainly has powers related to that under the "necessary and proper" clause. So, the focus must be elsewhere in answering this problem. As the issue statement makes clear, it's a federalism issue, namely, whether Congress can force states to do the work of the federal government. That's a 10th Amendment issue. In brief, Congress is limited in its ability to commandeer the states, which is precisely what this first section tries to do. It's unconstitutional, at least in my reading of it.
Let's take on the second statutory section - the federal spending restriction of law enforcement grants towards states that decriminalize marijuana. Once again, the key is to start with a sharp issue to avoid the "rabbit trails." Here, we might write as follows:
"The issue is whether Congress had constitutional authority when - as applied to the state at hand in this fact pattern - Congress cut off a federal law enforcement grant in the amount of $10 million out of a state budget of $600 million in state law enforcement spending."
Do you see the issue? It's lurking in the facts stated in the issue statement. Once again, this is a federalism issue. There's no issue that Congress can't spend money for the public welfare, particularly because the state in this fact pattern wants to receive the federal grant money. Rather, the issue is whether these "strings" constitute commandeering of the states by Congress in violation of the 10th Amendment. One could probably come out either way, but I think that the better answer based on Supreme Court precedent is that spending restrictions to encourage states to enact policies and law that comport with federal law are constitutional as long as states have a real choice as to whether to enact new favorable state laws to the federal government or give up the spending grants. In this fact pattern, the amount of money that the state will lose as a result of decriminalization of marijuana is only a small percentage of the entire amount that the state spends on law enforcement, which means that the state has a real meaningful choice to take the federal grant and comply with federal objectives or to refuse the federal grant and still have significant state law enforcement funding. It's constitutional, at least in my analysis.
Despite the fact that this essay problem was centered on federalism issues based on the 10th Amendment, a number of people talked about the commerce clause or equal protection concerns, neither of which were raised by the fact pattern. I can understand why. Bar takers have memorized so much law that they tend to put all of the law that they can think of without thinking through the problem first of all, especially because of the time pressures. But, I have a tip that can help preempt that sort of "rule dump." It's writing out an old-fashioned legal writing issue statement before beginning to write.
Here's what I mean by an old-fashioned issue statement. As set out by Ruta Stropus and Charlotte Taylor in their book "Bridging the Gap Between College and Law School," a great issue statement can take on the form as follows:
"The issue is whether [legal subject-verb-object] + when + [material facts]."
Take a look back at my issue statements. Do I start with the legal issue? Do I have the legal actor as a noun, a verb, and the legal object, here, as to the unconstitutionality of congressional action? Do I then add in a handful of hand-picked material facts from the fact pattern? You bet. In my own case, if I don't take time to work through crafting such an issue statement, I'm lost in most essay problems. I just start writing in circles, moving around in "rabbit trails" so to speak, without really understanding the fact pattern at hand or the questions presented in the essay scenario. In short, I ramble.
So, whether you are a bar taker or a law student preparing for mid-term exams, take a pause before you begin to write out your essays. Hunt for some "red hot" material facts to put down in paper as an issue statement. After all, it's what lawyers do best; they spot issues, the precise issues that are needed for solving their clients' problems. So, as you learn to think like a lawyer, practice like a lawyer too by taking time out to craft, identify, and precisely specify the exact issues posed in your midterms, final exams, or your bar exam essays. It's worth the time. Indeed, you'll be mighty glad because you'll find that you'll avoid the "rabbit trails" found on most essay exams and instead you'll be finding the rabbits themselves. (Scott Johns).
With apologies to T.S. Eliot, April is not the cruellest month -- October is, at least for first-year law students. The first heady glow and excitement of arriving at law school has faded. Many students experience the shock of no longer being straight-A students as legal writing and midterm grades roll in. The workload steadily increases, as do professors' expectations. For 1Ls who feel like they are barely treading water to keep up with class preparation, it seems downright oppressive to hear they should be adding practice problems, outlining, and other long-term study methods to their weekly schedule, not to mention attending professional events and polishing their resumes to apply for summer internships and externships. Added into this evil brew can be depression, anxiety, substance abuse, loneliness, or any number of other reactions to stress.
What's a 1L to do? The first thing, as Dean Jarmon observed last week, is put aside perfectionism and instead focus on realistic goals. Establish routines, whether you do so by sheer will power, calendaring, habit stacking as discussed by Professor Foster, using resolutions charts, or some other method.
But what if, after all your diligent work, you still feel lost, or confused, or overwhelmed, or panicked? What do you do?
Ask for help.
Many law students are reluctant to ask for help because they think it shows weakness. Nothing could be further from the truth. Asking for help is a professional skill which good lawyers practice constantly. An associate asks a partner for advice on how to handle a particular client. A lawyer consults the clerk of the court in advance to ensure filings are done correctly. An experienced lawyer calls bar counsel for advice when a thorny ethical issue emerges. A lawyer who recognizes that anxiety disorder is affecting her/his performance gets in touch with the state's Lawyer Assistance Program. All of these are everyday examples of lawyers asking for help. Appropriately asking for help sends the message, "I care enough about this to spend time learning to do it the best way I can, and I value your expertise."
If you are experiencing a mental health or substance use crisis, ask for help as soon as you realize you have a problem. While you can go straight to your institution's counseling center or your state's Lawyer Assistance Program, it is also appropriate to talk with any trusted person at your law school. Not only do they know you personally, but many faculty and staff have taken Mental Health First Aid training and are equipped to assist you. Likewise, talk with someone immediately if illness, injury, or major family issues have affected or may affect your ability to do the work of a law student. You will get not only a sympathetic ear but also practical suggestions.
Be just as professional in asking for help as you are in other aspects of law school life. Figure out what you need and frame your request narrowly. Professors don't react well to a student coming into office hours saying, "I don't get torts," but they will gladly work with you if you narrow your problem to "I've gone over the casebook and the CALI lessons, but I'm still confused about the causation rules involving multiple actors." In particular, your academic support professor is an invaluable resource to help you balance the academic demands of law school with the equally compelling demands of being a whole human being.
Most faculty and staff are not only willing but happy to help you if you are respectful of them and the demands on their time. But one circumstance bears special mention -- what we call "forum shopping" at my law school. Forum shopping occurs when a student asks one faculty or staff member for help but doesn't like the advice s/he receives. Without telling anyone that s/he asked another person first, the student then asks the identical question to a second person, and sometimes a third and a fourth. Forum shopping shows an extreme lack of respect for faculty and staff. Not only does the first person feel disrespected, but subsequent helpers can waste hours of time starting from ground zero when they don't know what guidance you've already received. Don't be afraid to seek multiple perspectives -- just let everyone know who you've asked and what advice you received.
Finally, don't forget to thank people for the help they've given you. This, too, is a mark of professionalism. (Nancy Luebbert)
Tuesday, October 23, 2018
Academic support professionals are often required to be observant, creative, and meticulous under demanding circumstances. Sometimes it helps to take inspiration from unexpected places:
The world was at war. It was 1943, and the United States was stretched across two oceans, trying to protect its merchant fleet while fighting at sea against Nazi Germany and Imperial Japan. Shipyards were working around the clock to build new and better ships.
In one such facility on the Delaware River, in Philadelphia, Dick James was trying to solve a problem. He was a mechanical engineer, and his task was to develop a support system from which to suspend delicate shipboard instruments, to keep them stable when a ship was in rough seas. He was working with tension springs, and at one point he accidentally struck one that was sitting coiled on a shelf. The spring arched over, planted itself on top of some books stacked nearby, flipped end over end and arched again onto the table on which the books were sitting, and then flipped again to stream in another arch over the edge of the table and onto the floor.
Anyone else in that room might not have noticed the spring's behavior, or, if they had, might only have responded with an amused chuckle and promptly forgotten about it. But James saw something in the way the spring had practically stepped from level to level, like an animated pair of britches. He wasn't sure what it was good for, and he soon discovered that he could not reproduce it reliably. But he sensed it was something, and something that hadn't been seen before. When he got home that day, he told his wife Betty about it and declared that he was going to find the right kind of steel and the right degree of tension to create a spring that could walk.
Dick James was on his way to inventing the Slinky, the perennially wonderful toy that still sells well, 75 years after that first accidental demonstration. What I find inspiring about this story is not just the fact that James observed something new and thought it was worth considering simply because it was new, and not just the fact that he pondered the possibilities of the new phenomenon without knowing exactly where they would lead him. What's inspiring for me personally is that James recognized that he would have to put in some serious work to make a spring that could walk, and that he undertook all that effort without a clear end result in mind at the start. He experimented for over a year, using different types of steel-alloy wire wound in coils of various sizes and tensions, and as he worked, he and his wife worked out what they wanted their end product to be: a toy with a name that connotes graceful movement and with properties that would allow it to stride down inclined planes and stairs.
James continued working on warships, because that was his job and it mattered. But during his off hours, he kept testing and measuring and winding and cutting, and with his wife planned how to package and market and sell his new invention, until finally in November of 1945, a couple of months after the end of the war, experimentation and application came together in a demonstration at Gimbel's Philadelphia department store -- a Slinky, walking down a ramp set up in the middle of the store, surrounded by children and parents. Within 90 minutes, James sold out his entire inventory.
Sometimes, in academic support, in the midst of putting out fires and ministering to students in distress and trying to build stable platforms that will keep our students steady even in rough seas, we might notice something out of the ordinary -- an odd pattern to student responses, an exercise format that isolates a particular skill, a certain stimulus that alters behavior or affect -- perhaps something that most other people would not recognize as unusual. We don't have to discard such observations if their usefulness is not immediately obvious. Sometimes, it makes sense to start refining a tool first, and then take advantage of that time spent in development to uncover what the tool might best be used for.
Tuesday, October 16, 2018
Final exams. Olympic competition. Oral argument. Job interviews. The bar examination. These are all high-stakes experiences, often competitive, in which successful outcomes depend on strong performance. As discussed last week, in such situations the human brain can adopt different chemical and behavioral states, depending on whether the situation is perceived as a threat or as a challenge. In a threat situation, the brain becomes hyper-alert to danger and error, processes information more deliberately, and shies away from risk. In a challenge situation, the brain pays less attention to detail, processes information in a more relaxed and automatic way, and is open to taking risks that have sufficient promise of reward. How can we use our knowledge of these two mental states, not just to understand our students better, but also to help them do better?
Let's start by noting that the brain can enter these different states at different times even if it is undertaking the exact same activity. A baseball player might step up to the plate in the third inning and see his task -- to try to get a hit -- as a challenge, and the same player could step to the same plate, even holding the same baseball bat, in the ninth inning and see it as a threat. So it's not the task itself that determines our mental state. It's the surrounding circumstances. Early in the game, when the outcome is still up in the air, a player may be "gain-oriented", focusing on accruing advantages (in this case, runs), and his brain will be in challenge mode. In the last inning, though, if his team has a slim lead, that same player could shift his focus and become "prevention-oriented", focusing on maintaining his team's lead by not making mistakes of which the other team might take advantage. In that case, his brain will be in threat mode.
In the same way, our students can undertake the same activity -- issue spotting, say, or answering multiple-choice questions -- at different times, and might find themselves in either challenge mode or threat mode. This is a good thing, a useful thing. After all, human brains evolved to be capable of these two modes, so each mode ought to have some beneficial qualities.
As Po Bronson and Ashley Merryman point out in Top Dog, in an academic setting there can be an optimal sequencing to these modes. Students perform best if they start their semester working in challenge mode and end it working in threat mode.
This makes sense in a general way. At the beginning of a course, students don't know much about the subject, and their goal should be to try to gain knowledge and skill as quickly as possible. A gain orientation is associated with challenge mode -- the brain plays hunches and takes educated guesses, because the risk (primarily, to grades) is low but the potential reward (flashes of insight) is high. Towards the end of the course, though, risk increases, as the student faces more heavily weighted final exams. At the same time, rewards are lessened, since (ideally) the student has already internalized most of the material and is not likely to learn a great deal more. On a final exam, a student is more likely to be in threat mode -- pondering the answer more slowly and cautiously, less inclined to make risky arguments, perhaps even debating word choice as he tries to recall the exact wording of a rule.
If a student is well-prepared for the final exam, proceeding cautiously with their mind in threat mode may be quite favorable. It can encourage methodical analysis, and help the student avoid unnecessary errors. However, there are two potential issues to consider.
First, as alluded to above, there are two sources of risk and reward in law school. One is the knowledge and understanding of the subject matter, and the other is the final grade in the class. A student who downplays either source is at a disadvantage. Reminding students to pay attention to learning the rules and how to use them, and to developing their test-taking skills at the same time, is part of what Academic Success is about. Being able to describe these abilities as complementary sources of risk and reward may provide us with another way of doing that.
Second, while being in threat mode may help a student avoid errors, they still may not perform well if they only enter threat mode for the first time in the final exam. Since threat mode slows analysis and limits the options the brain is willing to consider, it can change the way people behave during exams. We have doubtless all had students who felt confident in a subject all semester and then did poorly on their final, later explaining that they thought of some of the correct responses but abandoned them because they were afraid they might be wrong, and that they spent so much time working on the first half of the exam that they didn't have time to complete the second half. While there are several plausible explanations for such mistakes, one possibility for them to consider is that they had never practiced answering questions in that course in threat mode. If all of their practice was under the speedier, more relaxed challenge mode, then they had never really practiced under exam conditions.
Ideally, humans would have a switch we could activate to shift from challenge mode to threat mode and back. But, while we don't, it is nevertheless possible for professors to influence students and help shift them into threat mode. As Bronson and Merryman explain, teachers can affect their students' brains just by changing the way they present their examinations. If students are given a test and told that they will receive a certain number of points for every correct answer, then they focus more on the idea of gaining points, which encourages a gain orientation and thus a challenge mode. If, on the other hand, students are given a test and told that their scores start at 100 and that they will lose a certain number of points for every correct answer, then they focus more on not losing points, which encourages a prevention orientation and a threat mode. Even though mathematically the two scoring systems were identical, the differences in presentation caused measurable differences in performance.
Thus, one way to encourage our students to practice for final exams (and oral arguments, bar exams, etc.) in threat mode is to explain, in advance, that you will be scoring their practice work by subtracting points from a pre-determined maximum score. Conversely, students who fall into threat mode too early in the semester, perhaps because they are disproportionately worried about grade risk, might be coaxed towards challenge mode by being given exercises for which they will receive a certain number of points for every plausible point or argument. Even though the tasks the students are undertaking remain the same, we can help their brains approach them differently.
Thursday, October 11, 2018
It's that time of year. In the midst of many celebrations over bar passage, let's be frank.
There are many that are not celebrating. Their names were not on the list of bar exam passers. And, for some, it's not the first time that they've found themselves in this situation; it's a repeat of the last time around.
For aspiring attorneys that did not pass the bar exam, most don't know where to turn. Often embarrassed, many with significant debt loads, most feel abandoned by their schools, their friends, and their colleagues. All alone.
I'm not expert in helping with turnarounds. But, I'd like to offer a few tips that have proven quite helpful in helping repeaters change history to become "fresh start" bar passers:
First, as academic support professionals, reach out to each one. Make yourself available on their terms. Let them know that you care. Let them know that you are mighty proud of them, success or not. Support them, one and all.
Second, give them breathing room, lot's of time and space to grieve. Don't push them into diving back into the books. Don't lecture them. Rather, assure them that they don't need to get cranking on their studies. Help them to be kind to themselves. It's not a matter of just hitting the books again, and this time, doubly-hard. Instead, they need to take time out to just be themselves.
Third, when they are ready, set up a "one-with-one." Notice: I did not call it a "one-to-one". Rather, set up an appointment or meeting in a place of their choosing at a time that works for them in which you sit side by side, on the same side of the table or desk or cafe. They are not bar exam failures; they are real law school graduates. They earned their parchments. So, listen to them as colleagues on the same side of doing battle on the bar exam. Let them talk and express themselves as they'd like. Hear them out. How are they feeling? What went right? What's their passion? What saddens their hearts?
Finally, whey they are ready, make a copy of one of the essay problems that didn't go so well. Better yet, make two copies, one for each of you! That's because you are on the same team. Set aside 15 or 20 minutes and just ask them to mark up the question, brainstorm what they are thinking, and jot down the issues that they see. But...and this is important...tell them that you don't expect them to remember any law at all. Period. And, you do the same. Exactly the same. Don't peek at an answer key or even their answer. Instead, try your hand too; wrestle with the same question that they are wrestling with. Then, come back together to listen, ponder, and share what you both see as the plot of the essay question, the issues raised by the storylines, and the potential rules that might be in play. Once you've done all this prep work together, now, look at their answer. This is important, just look. Ask them what do they see? What do they observe? What went great for them? Where might they improve? In short, let them see that they have "inside information" about themselves based on their own personal bar exam experience and answers that they can capitalize to their advantage. Most often in the midst of working together, graduates tell me that they realize that they knew plenty of law to pass the bar exam. In fact, most are amazed at how well they memorized the law. And, that's great news because it means that they don't need to redo the bar review lectures at all. They know plenty of law. That frees up lots of time during the bar prep season to instead concentrate on just two (2) active learning tasks.
So, here are the two activities that bar re-takers should be prioritizing to successful pass the bar exam:
1. First, they should work daily throughout the bar study period through lots and lots of practice problems (essays and MBE questions). Every one that they can get their hands on. Open book is fine. It's even better than fine; it's perfect because they should be practicing problems to learn because we don't get better at problem-solving by guessing.
2. Second, they should keep a daily "journal" of the issues and rules that they missed when working over problems (to include tips about the analysis of those rules).
Just two steps. That's it. There's no magic. But, in not redoing the lectures, graduates will find that they have plenty of time to concentrate on what is really important - learning by doing through active reflective daily practice. Countless times, it's through this process of a "one-with-one" meeting that we have seen repeaters turn themselves into "fresh start" bar passers.
Finally, I want to write directly to those of you who find yourself in the situation of having to re-take the bar exam. You really aren't alone. Need proof? Here's a short video clip put together by the Colorado Supreme Court about re-taking the bar exam to include a few tips from some jurists and practitioners that have been in your shoes. (Scott Johns)
Tuesday, October 9, 2018
In the 1994 Winter Olympic Games in Lillehammer, Norway, the Japanese ski jumping team was having a very good day. After seven jumps, it had racked up a score so high that no one believed they could lose. The team’s final jumper, Masahiko Harada, who had already landed a jump of 122 meters on his first jump, only needed to jump 105 meters on his second to clinch the gold medal. But Harada faltered. His jump was not well executed, and he only managed to get to 97.5 meters before his skis touched the ground. The Japanese team ended up with the silver medal, finishing behind the German team.
Four years later, the Winter Olympics were being held in Nagano, Japan, and, once again, Masahiko Harada was on the team. He and the team were hoping to redeem themselves, and, of course, all eyes were on them as the home team. Harada was no longer the team anchor, so it was hoped that, without the pressure of having to be the final jumper for the team, he would perform at the Games as well as the team knew he could in practice. The first two jumpers did extremely well, putting the Japanese team in first place. But then Harada . . . did even worse than he had at Lillehammer, achieving a distance of only 79.5 meters on his first jump. The team fell to fourth place.
Things looked bad until Takanobu Okabe landed an Olympic record-setting 137-meter jump on his second attempt, bringing the Japanese team back into contention. They weren’t back in the lead, but at least they had a chance for a medal. And now it was Harada’s turn again. In his last two Olympic jumps, when he just needed to not screw up to keep the team in position, he screwed up. Now, if he wanted to help the team get a medal, he had to do more than not screw up. He had to excel.
And he did. He tied Okabe’s record, making his own 137-meter jump, and sending the Japanese team into first place. They would go on to win the gold medal in the event.
How did all of that happen? Why did Harada jump poorly in his last jump in Lillehammer, and his first jump in Nagano, but then manage to jump exceptionally well in his second Nagano jump? The stakes were high – Olympic gold – all three times, so surely there was always enormous pressure on him. What made the difference?
It might be easier to explain the difference if we consider, not the stakes, but the positions in which Harada found himself. In his second 1994 jump and his first 1998 jump, his team was in first place. He knew he had to perform to a certain level to maintain his team’s position. Expectations were high, but he didn’t have to do unusually well. He was just focusing on not making a mistake, because this situation was a threat to his (and his team’s) position.
In contrast, by the time he’d reached his second 1998, his team was no longer in first place. They weren’t expecting to win, but, thanks to Okabe’s big jump, at least they had a chance. Harada had less to lose, and good reason to allow himself to take risks, because there was more upside than downside to doing so. This situation was not a threat to his position; it was a challenge.
In their book Top Dog: The Science of Winning and Losing, Po Bronson and Ashley Merryman explain that there are physical differences between the way our brains react when we view a situation as a threat and the way they react when we view a situation as a challenge. In a threat situation, there is an increase in activity in the medial prefrontal cortex, the part of the brain that is associated with more deliberate and less automatic decision making. At the same time, the parts of the brain that watch out for external dangers (the left temporoparietal junction) and for internal errors in judgment (the anterior cingulate cortex) also become more engaged. Also, as activity in the amygdala increases, the brain becomes more sensitized to avoiding risk than to seeking reward.
In a sense, your brain starts paying closer attention to everything you see and do, and it clamps down on behaviors it perceives as potentially risky. In playing it safe, though, your brain limits the scope of the choices you feel comfortable making, which in turn shrinks the range of performance of which you are capable. When Harada was going for the 105-meter jump for gold in Lillehammer, his brain was subconsciously refusing to allow him to take actions – picking up more speed, jumping off closer to the end of the ramp – that would have given him great distance, but also would have carried an increased risk of falling. The cumulative effect of all those refusals made him, in a very real sense, incapable of performing anywhere near his best. In other circumstances, this would have been of little consequence -- 97.5 meters was by no means the worst jump in the Olympics that year, and it was probably several dozen meters longer than you or I could have managed. But in high-level competition, seeing the jump as a threat robbed Harada of the ability to show the world what he was capable of, and left him and his team wanting in comparison to the Germans.
In contrast, when you see something as a challenge, your brain takes on an entirely different set of characteristics. Hormones are released in the brain that dampen the activity in the left tempororparietal junction, the anterior cingulate cortex, and the amygdala, so you expend less energy and attention watching out for dangers, errors, and risks. Instead, your decision making starts to flow more easily and automatically; you rely on expertise and habit rather than stopping to deliberate over every choice. And when risks are perceived, they are not automatically shunned; instead, your brain attends to both the potential losses and the potential gains, and is open to taking the risks when the gains are great enough. When Harada was preparing to take his second jump in Nagano, he was no longer trying to protect his team's first-place position, so he didn't see the jump as a threat. He was able to look at it as a challenge -- Let me see how much I can obtain from this -- and, subconsciously, that freed up his range of behaviors to choose from. Only when his brain allowed him access to all the skills and knowledge he had acquired was he able to achieve the exceptional result he hoped for.
* * * * *
No doubt you smart people have already noticed the resemblances between Harada's performances and those of some of our law students, especially the ones who sometimes seem not to perform to the level of which they are capable. Whether students view tests, oral presentations, and other ordeals as "threats" or as "challenges" can have powerful effects on their performance. As we will see next week, though, threat stances and challenge stances both have a place in legal study, and there are ways that we, as teachers, can help students take the right stances at the right times.
Thursday, October 4, 2018
As reported in a Wall Street Journal essay by author Nicholas Carr, if you have a smart phone, you'll likely be "consulting the glossy little rectangle nearly 30,000 times over the coming year." Most of us seem to think that is not a problem at all, at least based on our actions.
That’s certainty true of me. I depend on my smart phone, nearly all of the time. It’s with me everywhere. To be honest, it’s not just a telephone to me. It’s my mailbox, my knowledge bank, my social facilitator and companion, my navigator, my weather channel, my bookshelf, my news outlet, my alarm clock, and my entertainer, just to name a few of the wonderful conveniences of this remarkable handheld technology.
But, here’s the rub. As outlined by Mr. Carr, there are numerous research studies indicating that smart phones, while often times beneficial to us, can also at times be harmful to our intellectual life, our communication and interpersonal skills, and perhaps even our own emotional and bodily health.
First, Mr. Carr cites to a California study that suggests that the mere physical presence of smart phones hampers our intellectual problem-solving abilities. In the study of 520 undergraduate students, researchers analyzed student problem-solving abilities based on smart phone proximity. The researchers divided students into three classroom settings based on phone proximity while watching a lecture and then taking an exam. In one classroom, students placed their phones in front of them during the lecture and the subsequent exam. In another classroom, students stowed their phones in purses and backpacks, etc., so that students were prevented from having immediate phone access during both the lecture and the subsequent exam (i.e., sort of an "out-of-sight-out-of-mind" approach). In the last classroom, students were required to leave their phones in a different room from the lecture classroom. Interestingly, nearly all students reported that the proximity of their phones did not compromise their attention, learning, or exam performance. But, test results indicated otherwise. The researchers found that exam performance was inversely correlated with smart phone proximity. Students with phones on their desks performed the worst while students with phones in another room performance the best. Surprisingly, however, just having a smart phone stowed nearby detracted from exam performance too. Apparently, just the knowledge that our smart phones are readily available negatively impacts our problem-solving abilities. In other words, to perform our intellectual best as lawyers and law students, smart phones need to be - not just out of sight - but well beyond our grasps whenever we are engaged in intellectual tasks on behalf of our clients because problem-solving appears to be compromised just by the presence of our smart phones.
Second, Mr. Carr cites to a study where researchers found that smart phone proximity is harmful to face-to-face communication and interpersonal skills. In this United Kingdom study, researches divided people into pairs and asked them to have a 10-minute conversation. Some pairs of conversationalists were placed into a room in which there was a phone present. The other pairs were placed in rooms in which there were no phones present. The participants were then given tests to measure the depth of the conversation experienced based on measures of affinity, trust, and empathy. Researchers found that the mere presence of cellphones in the conversational setting harmed human relationships and interpersonal skills such as empathy, closeness, and trust, and the results were most harmful when the topics discussed were personally meaningful. In sum, smart phone proximity can negatively impact our interpersonal social communication skills, important skills for law students and attorneys to attend to and strengthen in order to better serve our clients and the public.
Third, Mr. Carr references a study substanting that smart phones can negatively impact our emotional and physical well-being. In this study out of large US university, researchers evaluated the impact of the presence of smart phones in self-identity, cognitive abilities, emotional anxiety, and physiology by having participants work on word puzzles while measuring blood pressure and pulse correlated with self-reported survey results on anxiety levels and emotional well-being based on a state of pleasantness. While solving word puzzles, researchers at times would remove phones from the presence of the subjects while on other occasions researchers would ring the phones of the subjects. The results are startling. Blood pressure rises, pulse quickens, anxiety increases, sense of unpleasantness increases while cognitive abilities decline both when participants are removed from their phones and when they receive phone calls. In other words, we identify ourselves with our phones. They have become extensions of ourselves, to such a large degree, that to be deprived of access to our phones or the use of our phones negatively impacts our well-being as human beings. In short, we have allowed our phones to become part of us, to share in our feelings, such that we feel detached from ourselves when we are detached from our phones. In my own words, we feel alone (and indeed unalive) without our smart phones by oursides and in control of our lives. Or, to put it more simply, we can’t seem to live without our smart phones, and we can’t live with them too.
Plainly, that's a lot to think about. And, with all of the conversations swirling around with respect to the beneficial and detrimental impacts of technology on our cognitive, emotional, and physiological beings, there is still much that is yet to be known. But, I leave you with this thought.
Recently, I had one of my best weekend ever. But, it didn’t start out grand at all. In fact, the weekend begain like most of my weekends, busy, so busy that I neglected to check my pockets before washing my jeans. In my haste, I washed my smart phone too. Now horribly drenched, my phone was lifeless. Comletely dead. Stlll. At first, I was speechless. But, oh what I weekend I then experienced. Freed from my smart phone, I slowly began to relax. I started to connect to real people in real relationships and with real things. No phone calls and no buzzing emails or texts to interpret life’s relationships. I have to admit; it was one of the most best days of my life. Because of that experience, I now try to take one day per week free from my smart phone. Life can indeed be sweet to our souls, bodies, and minds without the constant intervention of our phones. And, better yet, life can be even sweeter for those around us too. So, feel free to join me in taking meaningful smart phone respites. The more the better. (Scott Johns)
Nicholas Carr, How Smart Phones Hijack Our Brains, Wall Street Journal, Oct 7, 2017.
Mr. Carr references numerous research articles, several of which are discussed in this article.
Adrian F. Ward, Kristen Duke, Ayelet Gneezy, and Maarten W. Bos, Brain Drain: The Mere Presence of One’s Own Smartphone Reduces Available Cognitive Capacity, Journal of the Association for Consumer Research 2, no. 2 (April 2017): 140-154, https://doi.org/10.1086/691462.
Andrew K. Przybylski, and Netta Weinstein, Can you connect with me now? How the presence of mobile communication technology influences face-to-face conversation quality, Journal of Social and Personal Relationships (2012), https://doi.org/10.1177/0265407512453827.
Russell B. Clayton, Glenn Leshner, Anthony Almond; The Extended iSelf: The Impact of iPhone Separation on Cognition, Emotion, and Physiology, Journal of Computer-Mediated Communication, Volume 20, Issue 2 (2015), 119-135, https://doi.org/10.1111/jcc4.12109.
Wednesday, October 3, 2018
We all get "stuck" sometimes. Whether you call it writer's block, perfection paralysis, or another name, you're in the grip of it when you've spent hours or days on a project with precious little to show for it --except, perhaps, some record-setting times in online games. 1Ls get bogged down with legal writing assignments and outlines; upper-division students get stuck on moot court briefs or law review articles; lawyers and faculty can grind to a halt on briefs, memos, papers, or any of the myriad of projects we tackle.
How do you get unstuck? Everyone must find their own approach, but these ideas can help:
- Recognize that you are stuck. Be honest, but gentle, with yourself. "Hmm, I don't seem to be getting anywhere; I must be stuck again" acknowledges your paralysis as a fact without any negative judgment. On the other hand, "What's wrong with me? I always sabotage myself. I'm a failure" can slow you down even further as your writer's block becomes an occasion for beating yourself up over anything you've ever done less than perfectly. Practice being as nice to yourself as you are to others.
- Stop digging. The saying "If you find yourself in a hole, stop digging" is attributed to everyone from Will Rogers to Warren Buffett, but whatever the source it contains a lot of wisdom. Once you recognize you're stuck, change what you're doing. Whether it's checking Instagram or playing FreeCell or merely staring blankly at a screen, stop! Close the tab or the app; shut down your computer/tablet/phone if that's what it takes. Don't succumb to "just a minute more" thinking.
- Break the cycle by doing something physical for a few minutes. Walk upstairs or around the block. Do some crunches, jumps, power poses -- whatever makes you feel good and gets some oxygenated blood flowing back into your system.
- Try tackling your project in a more physical way. Drafting your writing in longhand can help.
- Try freewriting. Set your timer for five to ten minutes and write without stopping, even if at first all you can put on the page is "I have absolutely no idea what to say." Don't edit, correct, or ponder -- just write. The actual physical act of writing without stopping somehow breaks the cycle of self-criticism that gets in the way of generating ideas and flow. Although 95% of what you produce during this period will be end up on the cutting room floor, freewriting not only unblocks barriers but often results in choice insights that you can use in your finished product.
- When you are back in the flow, write first and revise only afterwards. The curse of computers and their progeny is they encourage us to proof, edit, and revise from the start, which gets in the way of creating a coherent draft incorporating all our ideas. Try writing out your entire piece in rough form first to get your ideas out on paper, then revise for spelling, grammar, flow, and sense.
- Create something and let it go. Learn when you need perfection (rarely) and when you are best served by producing something that is merely good.
- Did I mention being gentle with yourself? Getting stuck is part of the human condition. Resolving the problem calmly is part of the lawyer's toolbox. (Nancy Luebbert)
Tuesday, October 2, 2018
One thing that distinguishes law school culture from that of many other professional schools is the high percentage of people in student services who already possess the degree most of their students are trying to obtain. I have never done an exhaustive analysis (but woo hoo! Research opportunity!), but in my personal experience the majority of people working in law schools in the areas of Academic Support or Career Services are law school graduates, and so are a fair number of people working in areas like Admissions and Libraries. A quick dive into the Internet suggests that medical schools and business schools do not hire their own graduates for student services at nearly the same frequency. In fact, when I checked out the staff of five med school Academic Support units and five law school Academic Support units, no one in the med school units possessed an M.D., but each member of the law school units possessed a J.D.
There are no doubt many forces pushing towards this odd result for law schools. One that is practically taken for granted is the idea that someone who already possesses a J.D. is far better positioned than anyone else to really understand what new J.D. students are actually going through. Part of this assumption is perfectly practical: people who already have their law degree have presumably already learned all the elements unique to the practice of law. We can “think like a lawyer”; we can wield IRAC without effort; we understand federalism and common law and stare decisis and all the idiosyncrasies that our students have to contend with while navigating the rigors of study, time management, and exams. This is not to say that non-lawyers couldn’t provide wonderful support to law students. There is just a general belief that lawyers have a head start on understanding the context into which everything fits.
At the same time, law school alumni are apt to think that they can understand what law students are going through because the alumni were students once, too. We remember the dread of our first cold call in class; we remember plodding through civil procedure and constitutional law; we remember trying to juggle classes and law review and OCI all at the same time. Like military veterans of different eras, maybe we didn’t fight on the same battlefield, but our students don’t have to tell us what it’s like, man. We know.
Except . . . we don’t always know. We know a lot of things, to be sure; for me, not a day goes by that I don’t relate some student’s challenge to one of my experiences in law school. Education is always a boon. But the longer I do this work, the more I find that I have to work to find out what my students’ present experience is really like. This is in part because law school is always changing and evolving. Each class’s relationship to electronic research, for example, is just a little bit different from that of the previous class. Economics change, student populations change, hot button issues change. But these big changes, I think we do a fairly good job of staying on top of. In fact, sometimes it seems Academic Support is ahead of the curve, and can help bring other members of the law school community – for example, those whose specialties do not change much from year to year – up to speed on them.
What I really find myself having to pay more attention to each semester is my students’ day-to-day realities. Some of the mistakes I made when I first started providing academic support came about because I was taking a “one-size-fits-all” approach, and only with experience did I realize that it was really more like “one-size-fits-me”. I was teaching to my experience in law school.
Now, I am no longer satisfied knowing what classes my 1L students are taking each semester – I need to ask their individual professors for their syllabi, so I can know what topics they are hearing about each week, so I don’t assume that their Torts professor started off, like mine, with intentional torts, and therefore so I don’t pose a hypothetical that half my class can’t answer. I try to participate in student club events, like fundraisers or dinners, so I can hear about mundane practical issues – things like parking and child care and the timing of holidays – that I never thought about in school, but some of my students have to. I talk to other faculty and staff to find out the schedule of moot court and mediation competitions, visits from employers, and off-campus learning opportunities – stuff I was not particularly interested in myself when I was in law school – so I can better understand why a particular student might be coming to talk to me about a certain writing or time management issue. I seek opportunities to listen to students who come from different locations, cultures, and economic circumstances, so I can be aware of what going to law school now is like for them.
Being a lawyer means having been a law student, and having been a law student can be a tremendous advantage when your job is to help other law students. But having been a law student does not mean you have been all law students.
Thursday, September 27, 2018
While recently hiking through a wildlife sanctuary, I came across this wooden facade of a building, and it got me stopped right in my tracks.
You see, I was hiking so fast that I wasn't really seeing the beauty of nature all around me.
I sometimes wonder if that's true of law school life too. We tend to spend so much time reading cases and regurgitating notes that we don't often see the big picture purpose behind it all. But, the goal of legal education is not to be an expert in all of the finer details of the cases but rather to build a legal "window" of experiences from which we can solve legal problems on midterm and final exams (and provide our future clients with wise counsel too).
So, with many law students facing upcoming midterms, now's the time for our students to grab hold of past exams and get out of the "books" to experience and try their own hands at working through hypothetical legal problems. In short, as students walk through the materials students also need to stop and take in the view. In my view, that's because learning requires both the so-called "book learning" along with heavy doses of experiential learning, particularly in working through hypotheticals. As a helpful reminder - that the windows we look through influence what we learn - here's the photo of the facade that I found so encouraging in helping me focus on the big picture learning. (Scott Johns).