Thursday, August 22, 2019
I hear voices. Not all of the time, mind you. But, definitely at the most inconvenient of times...like when I'm trying to read! [I think this is called sub-vocalization.] You see, I can only read as fast as I speak (and I don't tend to speak very fast unless I'm excited or nervous, which I often am, particularly when I'm trying to digest dense legal materials).
Indeed, when a student asks me to work with them through any reading passage (whether a case, a statute, or a multiple-choice problem or essay prompt), I really want to go in hiding, into a "sound chamber" so to speak, so that I can read slowly and not so-silently, as I work out the meaning of the text through hearing - in my mind - the words as they become alive, the punctuation marks as they spring up from the page into my voice, and the paragraph breaks as they give me time to catch my breath.
In short, if you haven't caught the gist of what I am saying, I feel like I am a poor reader because I am a slow reader.
Now, I suspect that most students don't sub-vocalize when they read, i.e., they don't hear voices when they read. Nevertheless, I gather that most first-year law students (and perhaps most law students in general) feel like they read too slow. If so, then you're exactly like me (and I'm supposed to be an expert at critical reading, particularly in reading legal texts, etc.).
But, before I get too far, in my opinion, rushed reading is not reading. To paraphrase Socrate's famous line that the "unexamined life is not worth living," an "unexamined case" is not worth reading. In other words, in law school, it's not how fast you read but what your learning about the law and legal problem-solving as you read. To cut to the chase, reading is about examining the cases and the statutes and the legal texts assigned in law school. And that takes time, lots of time. Or, to put it more bluntly, reading is really about "cross-examining" those legal materials, evaluating the strengths and weaknesses of the arguments and analysis, and then forming your own opinion about the merits of those arguments (and how you might use those arguments in the future to solve hypothetical problems posed on mid-term exams and final exams).
That gets me to the next question. How might I teach reading?
When I first started in academic support, I taught case briefing but not case reading, most likely, because it seemed to me that by briefing a case I had read the case. I'm not so sure now. That's because most case briefs (at least most of my case briefs) are composed of just bits of quotes and paraphrases of what the court said...rather than my evaluation of what the court said (or didn't say). Indeed, as Professor Jane Grisé writes, "critical reading is about 'learning to evaluate, draw inferences, and arrive at conclusions.'" J. Grisé, Critical Reading Instruction: The Road to Successful Legal Writing Skills, 18 W. Mich. Univ. Cooley J. of Prac. & Clinical L. (2017) (quoting L. Christensen, Legal Reading and Success in Law School: An Empirical Study, 30 Seattle U.L. Rev. 603, 603 (2007). Thus, because critical reading is about learning, it is something that can be taught. Id. Consequently, based on Professor Grisé research, let me offer the following suggestions on how one might teach critical reading, particularly reading cases that are jam-packed into the massive casebooks that comprise the bulk of reading in law school.
- First, confess. Set the stage for learning by sharing the worries and frustrations that you had (and perhaps still have) as a legal reader. Let students know that it wasn't a natural skill for you (or for anyone for that matter). Rather, critical legal reading is a skill that is developed, like muscles through exercise, bit by bit, in which we can all learn.
- Second, model pre-reading strategies. Share with students some of the ways that you engage in reading, even before you begin to read, by, for example, figuring out the purpose of the case by placing it in context with the prior and later assignments based on the case's position in table of contents and it's placement in the course syllabus. Then, get to know the players. Learn something about the case from the case caption, figure out the stage or setting for the case by talking through the information gleaned from the citation, etc., picture yourself as another judge or advocate for one of the parties, hypothesize how you might use this case in the future when it comes to exam time, skim through the case to capture the sorts of sections of the case and its organization (either by looking at headings or by skimming the paragraphs), and then poke around at the very end of the case to see what the court decided. Indeed, that's my favorite pre-reading strategy: Peeking at the end before I begin. That gets my focus jumpstarted!
- Third, read with gusto. Reading takes energy and focus, so if the time doesn't feel quite right, wait. But then, when you are reading to go, read the case facts - not as fiction - but recognizing rather that the facts involve real people and entities with real struggles. After all, cases often come to the court because people couldn't resolve hard-felt (and heart-felt) disputes on their own. As you read, look up words that you don't know. Write the meaning of those words, in your own words, in the margins of the text. Rather than highlighting lots of phrases that you think are important, make a notation on the text as to why you think that phrase or sentence might be important. Feel free to draw pictures or make paraphrases to help you capture the meanings of the words. If something seems unclear, it probably is, to you and to most of us. So, go back to those sections, in which the court often times doesn't explain its analysis, and make inferences (guesses) as to what is going on. Realize that the most (and perhaps all) cases are subject to different interpretations. Be creative to scope out connections with previous readings. Look for patterns. Dialogue with the materials. Question them, indeed, interrogate the court. Don't let the court baffle you. Instead, be on the lookout for mistakes that the court might have made in its analysis. In sum, talk back to the court and with the court as you read.
- Fourth, reading doesn't stop after you read. Instead, after reading, be an explorer to construct your own meaning of the case. As a suggestion, compile a list of questions that you would like to have asked the court or the advocates. Summarize in your own words what you think the case stands for (and why it was assigned for your course). Evaluate the case as to whether its reasoning was puzzling, or startling, or settling (and why). Conjure up different facts to test how the decision might have been impacted in different circumstances. Finally, synthesis a one sentence or phrase statement for what you've learned from the case, such as: "Vosburg (involving a schoolhouse kick) stands for the proposition that people are liable for battery even when they don't intend to harm anyone as long as they intended the contact because the purpose of battery is to protect people from - not just harmful contacts - but from all contacts that interfere with another's bodily integrity as a co-human being."
Now, before I let you go, just one more word about speed. You don't get faster at reading cases by trying to read fast. Rather, over time, much like water as it heats slowly on the oven range, using these strategies won't feel like an improvement...at all. Instead, if you're like me, you feel like its taking lots more of your time, energy, and perspiration to learn to be a critical legal reader. And, it is! But, by going slow, conversationally with the text, through practice in pre-reading strategies, then reading the text with robust gusto, and finally polishing off the reading by making sense and connections with the text for future use, you'll end up becoming a faster reader without even trying.
Much like learning to ride a bike, if you are like me, you fall lots and get lots of bruises along the way. That's because learning is hard difficult work. But, just like learning to ride a bike, once you get the hang of it, you'll be well on your way to being a better legal reader (and a better advocate on behalf of your clients in the future). (Scott Johns).
Tuesday, August 20, 2019
It is the start of the school year, and we are welcoming new classes of students to begin their courses of study in law school. Each course of study will comprise a score or more individual courses in particular subjects, and we hope that in due course every student will consume and fully digest a rich multi-course legal banquet. Of course.
Our versatile word "course" is derived from the Latin word "currere", meaning "to run" or "to flow". In all of its varied uses, it alludes to a sense of movement and progress, and this is particularly fitting when we think of the course of a law student's passage from matriculation to graduation. They arrive at school, eager and perhaps a bit awed as they imagine themselves advancing, starting off slowly, developing the knowledge, skill, and judgment of an attorney as they make their ways along, and then racing to the finish line to collect their prizes.
To many incoming 1L students, law school may seem like a watercourse -- like a channel through which they will be carried, sometimes swept through dizzying rapids, other times dragged through muddy waters of confounding breadth, ultimately to squeeze past a perilous bar and then be deposited at the port of Career, where their next adventure begins. In this view, all students need to do is learn to paddle, avoid rocking the boat, and make use of their brains and perseverance, and they will arrive at their destinations.
But there are better courses for comparison. Law school is best considered like a racecourse or a golf course -- not because their structures are more precisely analogous, but because of the way successful performers approach them. Sure, great sports performers make the most of their talents and training. But before they begin a race or a tournament, they get to know the course. A runner will trace out the course route, measuring the flats and the hills, and will plan out her pacing accordingly. A golfer will play or at least walk the course, making note of obstacles, slopes, and doglegs, and getting to know the feel of the greens. A skier will take practice runs down the course, developing a mental map so he can plan when to be cautious, when to be daring, when to push for speed. Knowing the course means they can make the best use of their skills and strategies over the long term.
So it is in law school. Week to week, month to month, semester to semester, knowing what it coming means students can expend their resources (time, attention, energy, etc.) more wisely. It means they can allow sufficient time to prepare for opportunities, or for challenges. It lessens the chances that they will wander out of bounds or run around in circles.
This is one of the reasons I love the start of the new academic year. It gives those of us in Academic Success a wonderful opportunity to provide something of immediate and long-term value to every new student we meet. We can walk them through the course! We can explain to them what a typical week will be like. We can preview all the major tasks of their first semester -- reading, attending class, outlining, midterms, legal writing assignments, practice tests, and final exams -- and help the students develop their own mental maps of the course. We can give them a bird's-eye of the entire tournament: the timing, value, and effort required of the opportunities and expectations they will encounter over the next few years. And we can do all of this for them painlessly -- not in response to an individual's frustration or anxiety or poor performance. It's the best part of the year, because we can give our students something they all can use, whether or not they have come into law school having learned the lesson that so many champions have learned: Successful performers don't see the course as running and carrying them along with it. They see the course as something they themselves run.
Sunday, August 18, 2019
I enjoy listening to books or material while driving. Music is nice, and a good break for some, but I don't need to listen to music often. My commute is about 30 minutes, which I believe can help me learn. Some of our students have longer commutes and feel the same way. Halle Hara put together a good resource that could help those students. Her new website lawschoolplaybook.com has numerous podcasts on critical law school skills.
I always warn my students that listening to material cannot be the exclusive way to absorb information. I don't absorb as much as I should when driving and listening to a book. However, listening to these podcasts could reinforce skills we are all teaching. I plan to see if I could integrate them into my D2L course as an additional quick assignment.
From my brief glance, I like the topics. We are spending significant time this year on reading comprehension. The podcast section of the site has 10 episodes on reading cases alone. I know my students need that information.
I am glad to see another one of our colleagues producing material that has the potential to help our students. Keep up the good work.
Wednesday, August 14, 2019
I entered the academic support field with the goal of keeping law students from making the mistakes I made in law school. In the yin and yang of my first year, I think I might have made every mistake possible. Here are some of the things I wish I'd known as a 1L.
You can make it as well as anyone else. I don't care if you're 16 or 65, just got out of college or finished college three decades ago, are the first in your family to get past high school or come from five generations of lawyers, went to nationals in debate or fear speaking in public. You belong here just as much as the rest of the class.
You're not better than anyone else. Congratulations if you graduated from an Ivy League school or worked 20 years as a top-level paralegal in a high-powered law firm or rose to prominence in the military or a corporation. Those experiences are enriching and will add depth to your understanding. Your classmates who attended community college or were river guides or worked the floor in a big box store bring equally valuable perspectives. If you have a tendency towards having a swelled head, ditch it now.
You don't have to study 100 hours a week to make it. Honestly, that's what our Dean of Students recommended at my convocation. I hope I was the only person stupid enough to follow his advice. Sufficient exercise, adequate sleep each night, and a day of rest each week, combined with a sustainable study schedule, will help you learn far more than putting in non-stop 15-hour days.
What you did as an undergraduate isn't good enough. Skimming the reading, doing an assignment at the last minute, just doing what's assigned and no more, and cramming at the end of the semester were adequate for many folks as undergraduates. They don't cut it in law school. Even if you keep your head above water doing this in law school, you won't gain the deep understanding that good lawyers need.
If you don't understand a case, don't read it over and over without a strategy. One how-to-go-to-law-school book I read suggested reading cases six or eight times superficially to make the salient points sink in. Baloney. But don't read once and give up, either. Talk with your academic support professional about effective reading strategies. Previewing, talking back to the case, and asking questions might seem artificial and stilted, but they are some methods expert readers use to understand -- and as a lawyer you must be an expert reader.
Ask questions. Even if you're shy. Especially if you think your question is stupid. There's no shame in not understanding. Asking for help is something that good lawyers do, all the time. And chances are that your classmates will heave a sigh of relief when you ask something that they were afraid to ask, or when you expose a problem that they didn't even see.
Learn to seek and welcome criticism. Opposing counsel and judges will point out every weakness in your case and every place your argument doesn't hold water. So use your time in law school not only to develop a thick skin, but also to actively seek out oral and written feedback, positive and negative -- on your case briefs, on your outlines, on practice exams, and on legal writing assignments. Taking critiques seriously will make you a better lawyer.
Be open to learning in new ways. You're lucky to be going to school at a time when the ABA mandates that every law school offer academic support to its students. Taking advantage of your school's academic support (variously known as Academic Success, Skills, Excellence, Achievement, and similar terms) will help your first year's experience be more efficient, effective, and enjoyable.
You're not here to learn the law. You're here to become a lawyer. Sure, you will be learning a lot of rules, just like a beginning medical student has to learn a lot of basic biochemistry and molecular biology. But just like a medical student is training to heal the human body, you are using the raw material of rules to learn how to use facts, words, and ideas to promote an orderly and just resolution of disputes. When you start to get bogged down and think all you're doing is memorizing, step back and think about how real people are affected by what you're learning. Use law school to practice becoming a great lawyer.
Be happy. Law professor Paula Franzese writes, "[L]ife will meet you at your level of expectation for it." If you expect to be miserable in law school, you will be. If you expect to be happy and fulfilled, you will be. Approach everything you do with a positive attitude, and 1L year will be a great stepping-stone not only to your life as a lawyer but to your life as a person living with purpose and joy.
Sunday, August 11, 2019
A new journey begins the next couple weeks for many students around the country. 1Ls at my school start tomorrow. The emotions range from excited to anxious. Whatever your emotion, I want you to know that someone else is probably feeling the same thing. They are probably only 2-3 seats away from you in class. Your feelings are normal. Embrace the new journey.
Some students walk into law school worrying that everyone will be ahead of them. I understand the feeling. I wasn't planning to attend law school until the summer before my last year of college. None of my family were attorneys (until I married into a family of attorneys later). No one in my family graduated college. Torts were still yummy desserts until 9am Monday morning of my first day. I had no idea what law school entailed, but I planned to work hard to do my best. Even without the background, I succeeded and became an attorney. All of you can do that too.
My suggestion for entering 1Ls boils down to 2 points. Work hard and seek feedback. I love the quote hard work beats talent when talent doesn't work hard. I am a firm believer that most of us can succeed with the right amount of quality work. The second piece of the advice is quality work. Quality work requires feedback. Don't aimlessly go through law school. Ask professors and ASPers for help. Seek feedback on outlines and practice essays. Feedback helps demonstrate where to improve, which leads to our growth. The right kind of hard works makes a difference. Worker smarter and harder. Everyone can do that.
My background and experience illustrates that you don't need lawyers in your family to succeed. If you haven't worked at a law office, that is alright. Most students entering your classes will not have a significant background in law. Law school will be a new and exciting journey for everyone. Do everything you can to maximize your potential and enjoy the journey. Have a great first semester!
Sunday, August 4, 2019
This is meant to be a short, not exhaustive, glossary of terms, or abbreviations, you might encounter during your first year. This is meant to give you a very basic understanding of the word. I also recommend asking your professors (you are not the only one wondering what the word means) or invest in Black’s Law Dictionary. Black’s Law Dictionary can also be found online at https://thelawdictionary.org/. But always remember, I created this glossary because you are definitely not the only one that doesn’t know the word!
1L, 2L, 3L: In undergrad, your year in school is usually referred to as freshman, sophomore, etc. In law school, we use 1L to refer to first year, 2L to second year, 3L to third year. Your law school might have a part time division, and in that case, some students might be referred to as 4Ls as well.
Affirm: To confirm a judgement on appeal, or uphold it. Meaning, the appellate court confirms that the lower court ruled “correctly.”
Appellant: A party who appeals a lower court’s decision, usually seeking to reverse that decision. A party would do this if they lose at court.
Appellee: A party against whom an appeal is taken. Their role is to respond to that appeal, and they usually want to affirm (or keep) the lower court’s decision.
Appellate Court: This is the type of court that hears appeals. This means the party that lost at the lower court level appealed to a higher court. The cases you typically read in law school are at the appellate court level.
Bar Exam: The Bar Exam, or sometimes just “bar”, is what most (there are some state exceptions, but not many) lawyers must take in order to be licensed. When you graduate law school, you have a Juris Doctor degree, but you are not a lawyer. You don’t become a lawyer until you pass your jurisdiction’s bar exam, and are sworn in. The Bar Exam is a two day test in either July or Feb. Your Academic Support person on campus will tell you more, but you do not need to worry about it your first year.
Black’s Law Dictionary: A legal dictionary. You should always look up legal terms using a legal dictionary versus a normal dictionary, as sometimes the terms will have different meanings. Any trustworthy legal dictionary will suffice for this, it just so happens that “Black’s” is the most famous.
BlueBook: This is the book most legal writing courses, law firms, judges, and law journals use for uniform citation. You might hear people talk about “bluebooking”, which generally means checking citations.
CALI: The Center for Computer-Assisted Legal Instruction, also known as CALI, is a non-profit consortium of mostly US law schools that conducts applied research and development in the area of computer-mediated legal education. The organization is best known in law schools for CALI Lessons and online interactive tutorials in legal subjects. They also have things like podcasts on various subjects. Your library will be able to tell you how to create a CALI account. At some schools, there are “CALI Awards”, which are given to the student that gets the top grade in the particular class. You might hear students say they “CALI’d” a class, and that might be because they did CALI lessons!
Case Book: Your textbook. A compilation of cases, chosen and edited to teach a subject.
Case Brief: As you read cases for class, you will want to “brief” them. You will receive instruction on how to do this, likely during orientation. Essentially, it is a summary of the case, so that you can remember things like important facts, issues, and the holding, when you are called on in class, and when you need to study and review.
Case Law: The law derived from a collection of cases. Essentially, judges will write opinions, and that creates caw law, or precedent. Case law can be common law, or, it can be used to explain and supplement statutory law.
Citation: A legal reference. In legal writing (aside from most exams) you will want to “cite” your sources. You will learn more about this in your legal writing courses. You typically use the bluebook to determine the correct citation format.
“Civ Pro”: This is the abbreviation typically used for the subject of Civil Procedure. Civil Procedure is the process, or rules, of a case. So, how to file a claim, and which court has jurisdiction. Essentially the rules of court. Typically, Civil Procedure courses will use FRCP, or the Federal Rules of Civil Procedure.
Clerking: Upon graduating law school, you can apply to clerk for a judge. This typically involves a great deal of research and writing, though the experiences may differ slightly from judge to judge and court to court. Typically, it’s a fairly prestigious honor.
Clinic: Law school training in which students participate in actual cases under the supervision of a practicing attorney or law professor.
Cold Call: Some of your professors might use “cold calling” in class. This has long been a staple of law school classes, but not every professor is the same. Essentially, it means calling on students without warning, or without looking for volunteers. So, the professor might say “Mr. Jones, what was the holding in Smith v Smith” even though you haven’t raised your hand or volunteered. Every professor runs their class in their own way, so after 1-2 classes, you’ll start to get a feeling for how your professor “cold calls”, if they do so at all.
Common Law: The body of law derived from cases, rather than a statute.
Conclusory: This is often used in legal writing, and means you have left out a proper analysis. You don’t want your writing to be conclusory, you want a conclusion supported by analysis. Your legal writing professors, and your academic support professors, will help you with this.
“Con Law”: This is an abbreviation typically used for constitutional law.
“Crim”: This is an abbreviation typically used for criminal law.
Defendant: in a civil case, the defendant is the one being sued. In a criminal action, the defendant is the one who is being put on trial for a crime.
Dissent: A disagreement with a majority opinion, especially among judges.
FRCP: Federal Rules of Civil Procedure. See “Civ Pro”
Holding: The court’s decision on a matter of law, sometimes called a judgement or a ruling.
Hornbook: A book explaining an overview of a particular area of law.
Hypo: Short of hypothetical. Your professors will often gives ‘hypos’, which are fictional scenarios, to help explain the law. In addition, your exams will consist of “hypos” you should answer. You might also hear others refer to “practice hypos”, which is one way of preparing for exams.
IRAC: Issue, Rule, Analysis, Conclusion. This is the structure that we use for legal writing. Sometimes, it will be referred to as CRAC or CREAC. CRAC is Conclusion, Rule, Analysis, Conclusion, and CREAC is Conclusion, Rule, Explanation, Analysis, Conclusion. They are all the same basic structure with very few modifications.
“K”: An abbreviation for Contracts.
Law Review/Law Journal: These are student run publications. You may have an opportunity to join one your second year, which means you will be editing the articles that the publications put out. The articles are typically written by law professors around the country.
Lexis/Westlaw: These are the legal databases you will typically use to research the law. Your school will have representatives from each to help you navigate the database. In addition, you will learn more about them in your legal research course.
Moot Court: A fictitious court, usually held in a law school setting, to argue “moot”, or hypothetical, cases. These cases are usually at the appellate level.
MPRE: the Multistate Professional Responsibility Exam, or ethics exam. This is usually taken before you sit for the bar exam, and is offered in August, October, and March. It is probably best to sit for it the August before your 3rd year, or the October of your 3rd year.
Outline: You will hear the term “outline” during your first semester. The 2nd and 3rd years may offer you their outline, or you may hear talk of a “commercial outline”. An outline is simply a way or organizing the information for a particular subject or class. There is no “right” way to outline; it can be a traditional outline, a flow chart, graphs, charts, mind maps, flashcards. The important part is that you are organizing, and synthesizing, the information being given to you in class.
While you can use commercial outlines, or outlines of fellow students, as a resource, do not use them in place of doing your own, as it’s the process of creating your outline, however it looks, that helps you master the material.
Petitioner: One who appeals from a judgment.
Plaintiff: the plaintiff is the party that is bringing the lawsuit, or initiating the claim.
Prosecutor: In a criminal case, the prosecutor is the lawyer that brings charges against the defendant.
Respondent: The party against whom an appeal is taken; appellee.
Reverse: When an appellant court overturns a lower court’s decision.
SCOTUS: Supreme Court of the United States
Statutory Law: Law passed by a legislative body. This is different from common law. Examples of this are the FRCP, UCC. And more.
Study Aid/Supplement: A supplement is a collection of books designed to help you understand the law. They are not case books. Your library will have more information on the various types of supplements, and what they are used for. Some, like commercial outlines, help you
Tort: A civil wrong. This subject typically involves things like car accidents, and so forth.
TWEN: This is a web platform that some professors use in class, and it’s associated with Westlaw. They use it to collect assignments, provide course handouts, etc. Your professor will tell you if you need to use it.
UBE: The Uniform Bar Exam. This is the bar exam administered in roughly 35 states. The reason this is significant is that the UBE score is “portable”, meaning you can transfer your bar exam score to other states. Your Academic Support person on campus will tell you more, and it’s not something you need to worry about your first year.
UCC: Uniform Commercial Code. This includes subjects like Sales, Commercial Paper, and Secured Transactions.
Writ of Certiorari: Used by the U.S. Supreme Court to review the cases the Court decides to hear.
(Melissa Hale, Loyola University Chicago School of Law)
Sunday, July 28, 2019
The sun is shining through my windows. The day is starting well. I turn on my computer, and outlook starts. The barrage of emails then piles into my inbox. I methodically answer questions about internships, class selection, the bar exam, exam taking, and other student concerns. As I finish my hour slog through email, my first student appointment comes in. We talk about life and law school. I finish the meeting and plan to work on my upcoming class. After pulling up the class schedule, I start planning the next class period. My phone vibrates (which also vibrates my watch). I get a text message about the half-price deals at Top Golf this week. I get back to thinking about my next class when my phone vibrates again. This time a group text about a kids activity. 9 messages later, I am back to thinking about class. Out of the corner of my eye, I see that my email box now has 12 emails. 3 of them can be immediately deleted, and 3 can be answered in 1 sentence. The rest take more time, so I will let them sit for now. Back to working on class, and a student needs to see me. By the end of the day, my class exercise still isn't done. Maybe tomorrow, or I may just do the same thing as last year.
Am I the only one that has this experience? Probably not. I am sure everyone has similar problems. Technology is infiltrating every second of my day, so my day includes tons of small breaks. The breaks cause me to lose focus, which in turn means I take longer to accomplish any task.
The book Deep Work by Cal Newport addresses this topic. He states that we are all so inundated with constant beeps and buzzes that our brains are being trained for only small tasks. We are addicted to the immediate need to respond or help that we can't accomplish more difficult and meaningful tasks. Deep work is when someone takes long uninterrupted time to contemplate a project. Hours of preparation and thought to innovate. Hours? I hope I get double-digit uninterrupted minutes to work on a task. His book is great at illustrating the problems with the constant interruptions and how societal breakthroughs are more difficult without high levels of focus.
Newport advocates for everyone to engage in deep work. He concedes that most people can't spend 4-5 uninterrupted hours on a project every day. However, we can only look at email at specific times. Creating routines that eliminate distractions for set periods of time can help. The goal is to not let anyone intrude on deep work time to enable quality thinking. The more time, the more we can accomplish.
Our students could use this information as well. I went to law school prior to smart phones, so I didn't have that distraction. However, the internet was enticing. One of the best things I did in law school was not connect my computer to the wifi my first 2 years. When I was studying, I couldn't check email, browse facebook, or do anything online. I read and briefed cases. I would check email when I got home. My focus during law school was probably my best focus ever. Most people don't have the willpower to not use technology. Putting phones in the other room or turning everything off is good. Eliminate distractions to improve focus.
I am working on trying to block out more time during the day for focus. Finding the time is difficult, but if I want to continually improve my programming, I need the time to think about it. Just like I tell my students, I must intentionally create quality time.
Thursday, July 18, 2019
I recently saw data suggesting that bar passers do things differently in the final weeks of bar prep than those who are not successful on the bar exam. That got me thinking about what I've been seeing, at least anecdotally, in working with students in preparing for their bar exams.
But first, let me be frank. Without hard dedicated work in learning throughout the course of bar prep period, and in particular, during the final week, it's really difficult to pass the bar exam because the bar exam, in the last few years, has become much more challenging, particularly due to cognitive load. See L. Schulze, Dear Practicing Attorneys: Stop Giving Our Bar Students Bad Advice. Thus, it's not just hard work that makes for passing the bar exam. Rather, it's important to make sure to do what is most optimal for learning during the final week of bar prep. See S. Foster, Positive Self-Talk.
So, even with all of the hard work, what might account for the differences in bar passage outcomes for both groups of diligent bar studiers? In short, it must be in the type of work that the two groups are doing rather than the quantity of work. In the last week, bar passers tend to ramp up their practice with lots and lots of MBE questions and essays while also working on memorization while people who are unsuccessful tend to focus on creating perfect study tools trying to memorize every little nuance of law with very little continued practice. In sum, one group is continuing to practice for the exam that they will take and the other group is focused on memorizing for the exam.
But, here's the rub:
It’s a perfectly natural feeling during the last week of bar prep to want to focus solely (or mostly) on creating perfect study tools and trying to perfectly memorize all the law.
But, according to the educational psychologists, there’s something called “desirable difficulties.” You see, when we jam pack our study tools with everything, we aren’t learning much of anything because we aren't making hard decisions about what is most meaningful. And, with everything written down, there's no opportunity for retrieval practice, which is the best form of memorization practice.
So, as a suggestion for the final week, tackle two to three subjects per day. Work through a number of essay questions for each subject. Then, take your study tool and use it for retrieval practice, reading it and then covering it up to see if you can spout out what's in it. Push yourself. You might even take your study tool and, without looking at it, recreate it in a different format, for example, converting it from an outline to a poster, etc. Then, in the evening, work through a batch of MBE questions, pouring and pondering through them. Finally, when you miss something in an essay or MBE question, add that concept to your study tool. As Prof. Micah Yarbrough at the University of Maryland says, your study tool becomes a sort of "bar diary" of your adventurous travels in learning by doing. And, it's in the learning by doing that makes all the difference in passing the bar exam because the bar exam tests - not just memorization - by problem-solving. So, for those of you taking the July 2019 bar exam, focus on practice first and foremost throughout the final week of your bar preparations because you aren't going to be tested on your study tool. Rather, you're going to be testing on whether you can use your study tool to solve hypothetical problems. And, good luck on your bar exam this summer! (Scott Johns).
Thursday, July 11, 2019
It's time to create your own personal handy-dandy bar exam study tools. But, you ask, how, with so many other things to do (and with just a few weeks before the bar exam). Well, here's a suggestion for creating your study tools from scratch in just a few easy steps and in less than 2 hours flat.
But first, let's lay the groundwork. Why should I create a study tool, especially with so many other tasks at hand that demand my attention in preparation for the bar exam in a few weeks?
There are at least three reasons.
First, the process of creating your own study tools creates a "mental harness" for your thoughts. It serves to bring you back to the big picture of what you have been studying the past many weeks since graduation.
Second, the process of creating your own study tools cements your abilities to synthesize and distill the rules that you will be tested on this summer. In short, we memorize (remember) what we create rather than what we read that others have created.
Third, your study tools are, in essence, an organized collection of pre-written, bar exam answers for tackling the hypothetical problems that you will face this summer on your bar exam.
So, let's set out the steps:
1. Grab Your Study Tool Support Team!
That means grabbing hold of the shortest bar outline provided by your bar review company. Shorter is better because less is often more! And, you already have too much to remember.
2. Create the Big Picture Skeleton for Your Study Tool!
That means taking hold of the table of contents in your bar outline provided by your bar review company or the subject matter outlines provided by the bar examiners. For example, the NCBE provides super-short two-page outlines for each subject on what issues are testable. http://www.ncbex.org/meeoutlines. Then, using that skeleton structure, create an overview of the testable issues in your own desired format, whether as flashcards, posters, or outlines, etc.
3. Insert Rule Sound Bites!
Using your bar review lecture notes or subject matter outlines, insert rule "sound bites" for each item identified as testable subjects. Move swiftly. Don't dwell. If you think you you need a rule, don't put it in...because...you can always add more rules later if you see that rule popping up in your practice during the course of the next two weeks. Don't try to create perfect rule statements. Instead, just insert the "buzz words." Feel free to be bold, daring, and adventuresome in doodling or using abbreviations to remind you of the rule. For example, for negligence per se (NPS), my study tool just reads: (1) P.C. and (2) P.H. That stands for protected class and protected harm. By writing out just a few tips to help me remember, I am actually enhancing my study tool (and developing my confidence in being able to recall, for example, the requirements for NPS). Get your entire study tool completed in 2 hours or less! How, you ask? By leaving lots of stuff out because you can always add more later. Here's a tip: It's called "desirable difficulties." You see, according to my arm chair understanding of the science behind learning, optimal learning requires us to push ourselves; it requires mental perspiration, it takes sweat. So, the process of deciding what to put into your study tool (and what to leave out, and, indeed, leaving out lots) enhances are learning because we can't solely rely on our study tools for memorization. Rather, our study tool because a prompt for our memory. So, keep your study tools super-short and crisp.
6. Take Your Study Tool for Lots of Test Flights During the Final Several Weeks of Bar Prep!
Yes, you might crash. Yes, it might be ugly. In fact, if you are like me, you will crash and it will be ugly! But, just grab hold of lots and lots of past bar exam essays and see if you can outline and write out sample answers using your study tools
Finally, let me make set the record straight.
You don't have to make an outline as your study tool. Your study tool can be an outline…or a flowchart…or a poster with lots of pictures...or a set of flashcards, etc.
What's important is that it is YOUR study tool that YOU built from YOUR own handiwork and thoughts! It's got to be personal to you because it's going to be you that sits for your bar exam. So, have fun learning by creating super-short snappy study tools that serve as organized pre-written answers for this summer's bar exam. (Scott Johns)
Tuesday, July 9, 2019
Like my colleagues, I am thinking ahead to the new school year even as my attention is consumed by those preparing for the bar exam three weeks from now. Last year at this time I was thinking mainly about scheduling and content and skills development, and how to tweak and rearrange my classes and workshops to make them more effective. This year, I find myself thinking at least as much about stories as about skills.
Part of this cogitation is driven by my conversations of late with students dealing with varying degrees of anxiety about the bar exam. I ask them how they are doing and what has led them to whatever position they currently find themselves in, and their narratives fall broadly into two categories. Some students tell me kinetic stories about what work they have done, what challenges they have faced, and what strategies they have employed. They may not have conquered every problem that has come up -- in fact, that's usually why they are talking to me -- but they still see themselves as the protagonists who are driving their stories and pursuing some kind of prize. Other students, even some with objectively similar obstacles, tell their stories in a different way. They are still the centers of their own stories, but things keep happening to them (poor performance on a practice test, illness, misunderstanding, etc.), and they are just doing what they can to cope. These latter folks are not doomed, by any means; they are, in fact, often quite capable. But they do seem to feel more anxiety and doubt than the more protagonistic students. So part of what I am wondering is whether it might be possible to cultivate that sense of protagonism by using language that highlights one's sense of agency and potency, from the very start of law school. Perhaps by using less language about "what will happen" and "what you will encounter", and more language about "what you will learn to do" and "how others have overcome difficulties", I can shift students' perspectives in a more empowering direction.
Another aspect of storytelling that has become clearly significant over the past year is how students perceive their stories in relation to their law school -- their fellow students, their class as an entity, their professors, their administration, and their alumni community. At the start of my 3L pre-bar prep course this spring, I felt it was very important to intentionally and repeatedly talk about our class as a team. We were there to support each other, I said, because we had common goals as individuals and as a group. Each student wanted to pass the bar exam in July -- that much they knew going into the class -- but, I pointed out, each student should also want to see everyone else in the class pass, too. Teamwork might mean going a little further to help our classmates in a pinch, but it also means we've got a bunch of other people in our corner, willing to do the same for us. The faculty, the administration, and the alumni want to see them succeed, too, because their success makes everybody look better, and because we've invested so much energy and faith in them. And if the class does notably well as a group on the bar exam, their pass rate becomes public information that makes them all look like part of a stellar crop of new lawyers.
At times I felt almost like a goofy cheerleader telling this story, and encouraging my students to tell that story about themselves as a team. But it seems to have paid off. This summer we are seeing notably higher rates of participation and completion of assignments in summer bar prep courses. Recent graduates are spending more time together, on and off campus, and I've been talking to far more of them in my office and on the phone than last summer. Just telling a story of teamwork isn't enough -- the school has also had to walk the walk, by providing additional resources and guidance to students -- but it is clear that intensifying our characterization of getting ready for the bar as a communal effort has had a positive effect.
This is another thing I am wondering about, as I move forward with plans to work with our new incoming students. How can I tell that story of the law school as a team in a way that will stick with these new students for three intensive years? Is there a way to cultivate that story in the face of the known competition for grades in the first year? Is there a way to keep that story from becoming trite and from being tattered by cynicism? I think there must be. It's not just the telling of the story that makes it work; it's also acting the story out, and making it seem real because it could be real.
So, while I will be working on better ways to improve students' analytical and time management skills this fall, I will also be thinking about better ways to tell them stories -- about themselves as individuals and as part of this new community -- that they can believe in. Stories that they will want to carry on telling themselves.
Thursday, July 4, 2019
On this July 4th holiday, with just under a month to go for this summer's bar takers, let's face the facts:
Most of us are downright exhausted.
And, we should be because we've been working pretty much non-stop since graduation Moreover, given what seems like the insurmountable pressures to learn so much material for the bar exam, it seems like we can't let up with our daily regiment of bar studies. There's just too much to learn.
However, let me offer you an encouraging way to "let up" so that you can feel mighty good about taking a real day off, whether today or this upcoming weekend.
Here's how and why...
Holidays, such as the Fourth of July, are some of the best days of the year to see bar exam problems in living color.
That box of fireworks someone bought at a big-top fireworks tent stand. That was procured through negotiation of a UCC contract for the sale of goods (and the seller most likely provided a secured transaction agreement in order to bring the goods to sale).
That box of fireworks that didn't work as advertised. Well, that might just blossom into a breach of contracts claim or even a tort claim for misrepresentation.
That box of fireworks that were lit off in the city limits. In most cities, that's a strict liability crime, plain and simple.
You see, even when we take a day off from studies, we are live in the midst of a world of bar exam problems. In fact, we are surrounded by bar exam problems because the bar exam tests legal situations that are constantly arising among us. So, it's a good thing to get our heads out of the books occasionally to see what's happening around.
That means that you can completely feel free to relax and take a whole day-off because even while taking a time-off, you will still be learning lots from just living in the world. And, because you've been trained as a professional problem-solving attorney, you can't help but see legal problems in full color everywhere. That's a sign that you are well underway in preparations for your bar exam this summer.
So, please rest assured - bar takers - that in the midsts of a day-off with family and friends, you'll be learning helpful legal principles that you can bank on preparation for success on your upcoming bar exam. And, as a bonus, you'll get some mighty needed rest to recharge your heart and mind too! (Scott Johns).
Monday, July 1, 2019
Don't fight [challenges]. Just find a new way to stand. - Oprah Winfrey
The bar exam is 30 days away. It may feel like you have been prepping for the bar exam all your life instead of six weeks. The 30-day mark is a great opportunity to acknowledge that not all bar takers enter bar study on the same footing. Students without strong academic records may be riddled with self-doubt about their ability to pass. For repeat takers, the mental and financial exhaustion of bar study can be all the more discouraging when experienced a second or third time. Past negative experiences are setbacks of which bar study brings daily reminders. These setbacks are short-term, but under the lens of today, they may seem to indelibly mark one’s chance for future success.
Whether your setback was a previous bar exam failure, or not finishing law school with the ranking or job opportunity that you hoped for, there is a comeback in your future. Maybe your setback is trying to juggle a full-time job and raise a family, while your peers bask in the seeming luxury of full-time bar study and an arsenal of supplemental study aids. Whatever the setback, use it as the gateway to an epic comeback.
If we track the lives of great actors, athletes, political leaders, and other celebrities, we'll find some major comeback that catapulted their career success. Public figures who have mastered the art of the comeback transform their reputations and eradicate public recall of scandals, felonies, fraud, and political defeat. After a comeback, onlookers almost never remember the setback, that is because the setback is never as good or as lasting as the comeback.
Instead of allowing your setback-circumstances to shape your attitude or approach to bar study, let your setback elevate you to greater heights. Pledge today to reform your thoughts. You are not struggling through bar study. You are making your comeback.
Sunday, June 30, 2019
I am seeing more students the last couple weeks with one major question. How will I memorize all this law? My short answer to them, you won't. I know that answer terrifies many students, especially high achieving students. The vast majority of students walked into final exams with precise knowledge of individual subjects. No one feels that comfortable with the bar material. One big piece of advice is, you can’t remember everything and should focus on what is most likely tested. While true, the most likely tested material still covers over 20 subjects.
Clear techniques from research can increase most people's memory. Everyone has varying degrees of innate ability to remember items, but nearly everyone can use a few simple techniques to remember vast quantities of information. Joshua Foer wrote a book (Moonwalking with Einstein) discussing this particular topic. He studied and entered a memory competition after only practicing the techniques for 1 year. After that 1 year, he won the competition. Here is a 20 minute Ted talk discussing his experience.
I highly encourage students to watch the video. This is a Ted talk, so it is a little difficult to understand how it will apply to law school. Here are a few tips created from his talk:
- Create Visuals for Information – Notice how it was easy for him to remember his speech due to the silly visual. This is exactly what you should do for concepts and rules. It is much easier to remember a very specific image of a tort happening or contract negotiation than it will be to remember the exact words of the rule. Images, stories, anecdotes, etc. All of that will help remember concepts.
- Structure – Inherent throughout his discussion of memory palaces is structuring information. Foer talks about how we remember structured ideas. It is easier to memorize items that are structured. Your structure may be different, but you still need structure. This is one of the reasons making an outline in law school was so important. It is easier to understand how everything relates to each other if you create the structure. Make sure to understand how everything fits together. That will all improve memorization. The great news is expertise helps create structure. Getting a J.D. is the expertise necessary to pass the bar exam.
- Pay Attention – Memorization can only occur when someone is focused. The brain needs to import the information into memory. Focus on the task at hand. Put away phones and email. While in the lecture, create a structure as the lecture progresses. When studying, focus on memorizing. Take breaks every hour to prevent burn out. The key is to pay attention.
- Spacing – In a separate interview he did about his book, he criticized the education system for failing at this concept. The idea is people lose information immediately after studying it. The way to retain the information is to periodically review it throughout the process. For instance, reviewing outlines throughout the semester helps final exam performance. The same is true for the bar exam. Space periodic review all the subjects. That is included on most companies bar prep schedules, but if you feel like you are forgetting a particular subject, then do a quick review.
- Chunking – In the same separate interview (which isn’t online anymore), Foer states that our working memory only has 7 chunks (+ or – 2). We can only really put 7 things in and try to remember it. I believe he is mainly discussing short term working memory, but the idea is still helpful for bar prep. He says individuals can chunk (or categorize) items to remember more information. The basic idea is that it would be difficult to remember a 20 digit number (ie – 28947503782305905367), but remembering a combination of 3 digit numbers is much easier (ie – 289, 475, 037, 823, 059, 053, 67). Associating numbers with images or other information can increase retention (for me, I could remember 28, 94, 75, 03, 78, 23, 05, 90, 53, 67 easier by associating them with football player numbers). This is huge for the bar exam. It will be extremely difficult to remember all the rules individually, but chunking information can increase retention.
- Lastly, Grit – Foer says memorizing is hard work. It won’t be easy, but those who work through the obstacles can make it. The same is true for the bar exam. You can be successful with hard work.
Thursday, June 13, 2019
If I recall correctly, the line went something like this: "The world is filled with lonely people waiting for others to make the first move." At least, that's my recollection of the saying from the wonderful movie entitled "The Green Book," which I happened to have the opportunity to watch on my flight while traveling to the Association of Academic Support Educators (AASE) Conference a few weeks back. Little did I know at the time the tremendous impact someone would make by reaching out to me at the AASE Conference in Seattle.
You see, it was the final day of the three-day conference. With just a few more presentations available, I thought it best to focus my remaining time on bar prep sessions because that's my primary job. But, while mingling in the hallways of the law school building at Seattle University, I got a friendly tug in another direction. A person - who I had only briefly talked with at the conference - came marching and smiling right up to me and encouraged me to go to her presentation, which was set to start in a matter of moments. The warm-hearted invitation got me. Oh my golly, am I ever glad that I went! Her presentation was earth-shattering. It was the sort of talk from the heart that brought tears and promise.
Here's a brief snapshot.
The presentation was entitled "Academic Skills Invented by Necessity - the Untapped Potential and Creativity of Disabled Learning, and Inclusive Teaching." Professor Karen Wade Cavanagh's story was featured as part of a documentary by Oprah Winfrey in 2015 entitled "Belief:" http://www.bu.edu/law/featured-in-oprah-winfreys.
In short, Karen suffered a traumatic brain injury in a boogie boarding accident. In her talk, Karen showed photos of her rescue. Twice Karen was brought back from the brink. Life for Karen has since necessitated numerous surgeries and rehabilitation. Much was starting over from scratch. But, that hasn't stopped her (or others either).
Here's as an example...
Post-accident, while moving on a sidewalk in a wheelchair on her way to school, Karen was at an impasse. You see, due to crumbling infractures, many of the intersections at city crosswalks were no longer graded to allow rolling back up. Karen went down to cross the street...but couldn't get back up due to curb. Stopped in the roadway in the crosswalk, Karen noticed joggers and walkers run and walk past her, up the curb, and back onto the sidewalk. So, what did Karen do? She stuck her thumb out to the next passer by. That jogger came alongside and pushed her up and over back onto the sidewalk. Success. She was soon at school.
Life has tough spots for all of us. But, as Karen's story reminds us, it's sometimes difficult for us to see the tough spots that others are facing.
The first lesson I learned is that when I am in a tough spot, I need to just go ahead and stick my thumb out.
The second lesson I learned is to keep my eye out for others. Try to look at life from their perspective, not mine. And, be ready to reach out to others.
Life is not meant to be lived alone but rather in community with others. To be frank, as an ASP'er, I often tend to approach the issues that my students are having from my vantage point, usually with the idea that a particular academic study tip might be of help. But, I am often too quick to the draw with suggestions such that I miss seeing what is really going on. That's because I am too quick to talk instead of listen. But, in my experience, most of the time, so-called academic issues are not academic at all. They are life issues instead. And, life issues requires me to open up, to be vulnerable to others, and to live within the perspective of others (and not just myself). In short, being an ASP'er requires me to live life in "being" with others. I think that is what it means to not just be an ASP'er but truly a human being too. (Scott Johns).
P.S. Thanks Karen for making a mark that will live with me forever!
Sunday, June 9, 2019
Oklahoma suffered the worst loss in Women's College World Series Championship history last Monday night. The worst part was OU's expectations going into the series were sky high. They only lost 2 games all year. They had a 41-game winning streak, the longest single season streak ever. The team was top 5 in every major statistical category. Some commentators thought this could be an all-time great team. UCLA then beat them by 13 runs. One possible response would be to give up on game 2 the following night. In the first inning of game 2, UCLA hit 2 more home runs. Everyone thought another rout was on, but then OU played with every ounce of grit they could muster. They lost in the bottom of the last inning, but not before tying the game with a 2 out home run in the top of the inning. Even in defeat, Coach Gasso said game 2 was one of the most impressive performances due to the circumstances. Players said they flushed the defeat and fought the next game. Law students need a similar mentality.
Spring semester grades will roll out any moment. Some students will feel major defeat. Defeat they never experienced before, or at least not before 1st semester grades released. The rout could be on. Getting down and resigning to continued struggles or frustration is a natural and easy response. Our students have high expectations, so they could get especially down.
The OU response is informative. Flushing the bad experience may be the best way to help our students. Flushing it doesn't mean ignore everything that happened. Students should still analyze study habits, determine what happened in particular classes, and make adjustments. OU adjusted their hitting and pitching strategy for game 2. Ignoring the result isn't the answer. Coach Gasso talked about how they trusted the process. Encouraging students to make adjustments and trust the process is critical. I meet with students every semester that second guess everything. They wonder if they should have studied differently or completed a different practice question. Second guessing doesn't help. They have to trust the process. Help students work through a good plan and keep working with them to trust it.
Difficult results are right around the corner. Helping students flush those results and figure out the changes to fight next semester is the goal. The summer may not be the perfect time to reach out and meet with students, but we also can't wait until the defeat is completely gone. Help students use the experience to fight through next semester.
Tuesday, June 4, 2019
Yesterday, the quiz show Jeopardy! enjoyed its highest ratings in more than 14 years, <spoiler> on the day that 32-game winner James Holzhauer lost to librarian Emma Boettcher and fell just short of breaking the all-time record for most money won during regular play. (Sadly, James walked away with only $2,464,216.) My friends in the trivia community have been watching James's exploits with various mixtures of admiration, envy, bemusement, and exasperation. The latter two emotions have been prompted not by James himself, but by the sense-making reactions of casual viewers and the media to his success, and then to his defeat.
James racked up an intimidating number of high-scoring games -- including all of the top-ten highest-scoring games of all time -- and he sometimes won by six-figure margins. To a lot of pundits, these overwhelming victories suggested a new and singular player: either someone with unmatched, superhuman genius, or someone who had come up with a novel strategy that had "broken" the game forever. From the perspective of a lot of fans at home, this made sense. How else could someone achieve such never-before-seen results without some sort of mystical secret ingredient?
But to a coterie of former players and dedicated aficionados, there was nothing mysterious or unduplicable about James's style of play. He is a tremendous player, to be sure, certainly among the best. But the skills he brought to the game are pretty much the same skills other great players have exhibited before. He knows a lot of trivia; he is very adept at using the signaling device to snatch the opportunity to answer first; he understands the optimal strategies for choosing clues and making bets. His historically high scores are due mainly to a gutsy willingness to risk losing all or most of his pot by making big bets that, when successful, have left him with insurmountable leads. In the past, even the strongest players played more conservatively, hedging their bets so a wrong answer wouldn't take them out of the running. But James is a professional gambler, and he decided to maximize his return by maximizing his risk. This was a choice, not an aptitude, and anyone playing against him would have the capacity to make the same choice.
In fact, in yesterday's game, Emma did just that, making her own big bets to take a lead that James could not overcome. When the game hinged on one final question -- one that all three contestants would have the chance to answer, and on which each would have to make a wager -- Emma, in the lead, bet most of her accumulated winnings. James, close behind in second place, did something the audience had never seen him do before -- he bet only a tiny fraction of his pot, not even enough to catch up to Emma's pre-final score. Across the country, Twitterers and newspaper columnists alike responded incredulously. He wasn't even trying! they wrote. He's throwing the game on purpose! Commentators tried to make sense of the motivation behind such uncharacteristically tame behavior as James's desire to go home to be with his young daughter or his unwillingness to destroy the previous all-time record, out of respect to the record-holder, Ken Jennings.
But, again, to those who have played the game, there was nothing inconsistent or irrational about James's small bet. If you're in second place going into the final question, and you have more than half of the leader's score, then the leader is virtually always going to bet enough so that, if she answers correctly, her score will be more than twice your pre-final score. Even if you bet everything you have from second place, if the leader gets the final question right, you cannot catch her. There's nothing you can do to win if the leader gets the final question right -- so you need to think about how to maximize your chances of winning if she gets it wrong. And if she gets it wrong, she loses the amount that she bet -- often, an amount that is big enough to drop her score below your pre-final score. In such a case, if you want to make sure that you will win if the leader answers incorrectly -- whether or not you answer correctly yourself -- then you want to make a bet small enough to stay ahead of the leader's final score if she gets the last question wrong. And that is why James bet small at the end. He was still playing to win.
I'm saying all of this not to minimize the accomplishments of a truly great Jeopardy! player, and not even primarily to teach people sound game strategies. What I'm hoping I've done is illustrate how the natural human inclination towards sense-making can easily lead to misjudgments and misinterpretations, especially when people know something well enough for it to seem familiar, but not truly intimately. Sense-making is the act of coming up with plausible rationalizations for why things are the way they are. It is not necessarily a bad tendency -- it is, after all, how scientific inquiry begins. But "plausible rationalizations", while comforting, are often inaccurate, and relying on them uncritically can be dangerous.
Our students and recent graduates preparing for the bar exam are just now in that space where they've seen enough of the structure and content of the bar exam for them to seem familiar, but not enough of them to really intimately how to do well on it. As they take practice tests and observe their fellow preparers and hear stories about people who performed well or poorly in the past, they might run into some of the same issues with sense-making that I described in everyday Jeopardy! viewers:
- Misjudging the ratio of cause to effect -- People are naturally impressed by outcomes, and when causes are not well understood, there is sometimes an assumption that big differences in outcomes can only be explained by big differences in causes. Many viewers saw James's high scores, nearly twice as high as previous records, and assumed that he was twice as smart or twice as quick as anyone who had played before him. In reality, he was probably only slightly more skillful than most of the folks he played against, but the nature of the game is such that, once a player gains a small advantage in scoring, he can exploit and multiply that advantage enormously. In a similar way, bar studiers who see big differences between themselves and their classmates, or who see only small improvements in their own performance over time, might not be familiar enough with the task of bar preparation to recognize the true magnitude of the causes of those differences. They might assume that small improvements (or plateaus) indicate that they have not learned much, when in fact they've made a great deal of progress and are nearing a tipping point of improvement. They might assume that they could never get scores as high as some classmates', because they are just not smart enough or don't have time to study as much as they'd need to, when in fact in absolute terms they might only need to improve, say, recall by ten percent. (Or the mistake could be in the other direction -- for example, assuming that adding fifteen minutes of flash card study every day will double their MBE score.) Over time and with practice and feedback, they should get better at making these judgments, but this early in the summer, we should be generous with lending some perspective to their rationalizations.
- Tendency to search for a single overarching cause -- Systems are complicated, and humans like simplicity. There is something comforting and manageable about identifying one thing -- like a super big brain or a revolutionary game strategy -- that totally explains how to achieve a particular outcome. Thus, we see graduates who insist that the key to doing well on the bar is religiously answering a certain number of MBE questions each night, or memorizing the contents of a particular outline (especially one that someone who passed the bar before them has endorsed). The truth is that the bar exam is multimodal and designed to test multiple skills and multiple dimensions of understanding. There is no single overarching cause of success on the bar, no matter how comforting that would be, and helping students to recognize early on the rich multiple approaches to success will help them proceed more realistically towards their goals.
- Tendency to attribute unexpected observations to new causes -- At a primal level, there is something unsettling about the unexpected, and one sense-making reflex is to assume that anything we haven't seen before must be a manifestation of some new element. James's unexpectedly small bet was completely explainable within the schema he used to make his earlier large bets, as applied to a new set of conditions, but viewers unfamiliar with that schema assumed that the small bet indicated a complete change in goals and strategies. In the same way, a student who sees an unexpected drop in practice test scores one week might tell themselves that it's because the testing room has changed or the weather is hotter or the lecturer that week is not as good. But the reality might simply be that the method of study the student had been using for the previous few weeks, which was fine when they had only covered three or four subjects, is now just not able to help the student handle the burden of six or seven subject's worth of materials.
Of course, it is sometimes true that new observations are attributable to new causes. The reason sense-making can be dangerous for students is not because every plausible rationalization is wrong, but because, without support, students may not be able to tell the difference between sound and unsound rationalizations. The students most likely to succeed on the bar, just like the contestants most likely to win on a game show, are those who learn enough before the big day about the challenge they face to be able to actually make good sense of what they are doing.
Thursday, May 30, 2019
Last week at the annual Association of Academic Support Educators (AASE) Conference, Professor Paula Manning shared an analogy about learning that gripped my mind and heart.
You see, as Professor Manning reminded us, working out to get in shape is tough work. Building muscles, well, takes daily pain. It requires us to push ourselves, to lift beyond what we think we can, to walk further than we think we can, and to run harder than we think we can. And, it requires us to work out nearly everyday. Moreover, as Professor Manning related, the next day after a heavy workout can feel just downright aching. "Oh do those muscles hurt." But, we don't say to ourselves: "Wow, that hurt; I'm not going to do that again." No, instead, we say to ourselves: "That was a really great workout; I'm building muscle." In short, we are thankful for the temporary pain because we know that it will benefit us in the future.
But, when it comes to learning, as Professor Manning reflected upon, we often tend to not view the agonizing daily work of learning as beneficial in the long term. Rather, if you are like me, I tend to avoid the hard sort of learning tasks, such as retrieval practice and interleaving practice, for tasks which, to be frank, aren't really learning tasks at all...because they aren't hard at all (such as re-reading outlines or highlighting notes, etc.). But, if you and I aren't engaged in difficult learning tasks, then we aren't really learning, just like we aren't really building muscles if we just walk through the motions of exercise.
So, for those of you just beginning to embark on preparing for your bar exam this summer, just like building muscles, learning requires building your mind to be adept at legal problem-solving by practicing countless multiple-choice and essay problems on a daily basis. In short, the key to passing your bar exam is not what you do on bar exam day; rather, it's in your daily practice today that makes all the difference for your tomorrows.
As such, instead of focusing most of your energies on watching bar review lectures, reading outlines, and taking lecture notes, spend most of your learning in problem-solving because that's what you will be tested on this summer. Big picture wise, for the next six weeks or so, half of your time should be spent in bar review lectures, etc., and the other half should be spent working through practice problems to learn the law. So, good luck in working out this summer! (Scott Johns).
Wednesday, May 29, 2019
Years ago, as part of an effort to address bar passage issues at my school, some well-meaning professors suggested having a remedial course for lower-performing law students. In broad-brush terms, the centerpiece of the proposal was to require students to begin each class, starting from the very first day of the semester, with a timed 30-minute essay question. After students finished the timed exam, the remainder of the class period would be devoted to the instructor reviewing the question and explaining what students should have written in their answers. Merely by dint of forcing students to write essay exam answers over and over, the theory went, they would do better on law school and bar exams. But the proposed class structure neatly met the clichéd definition of insanity, by requiring students to do the same thing over and over and expecting a different result just by discussing what they should have done after the fact. Fortunately, the proposal never gained traction.
This summer and fall, I'm privileged to be involved with a CLEO program for incoming law students that takes the opposite approach. The Pre-Law Summer Institute, CLEO's familiar and long-standing residential program designed to prepare diverse participants for law school, now is preceded by a 30-hour online program, Developing Law School Literacies, devoted to providing instructional intervention from the start. Designed by Penn State education professor (emerita) Dorothy Evensen and funded by a grant from LSAC, the program leans on research about reading skills conducted by academic support educators such as Rebecca Flanagan and Jane Grisé and uses pedagogy based on sociocultural theory to provide intervention from the start. Rather than trying to do tasks on their own, students in this immersion program have frequent, intensive small-group meetings with academic support professors who act as instructional mediators. By explicitly focusing the students on using the tools given for effective case reading and briefing, and by verbalizing reasoning processes, the instructional mediators help students collaborate to competently complete a legal task from the very start. Each meeting focuses on a different aspect of case reading and briefing, such as the facts, the reasoning, and the rule.
I am especially excited that this program strongly emphasizes pre-reading, which in my experience is critical to active engagement with a text. I additionally hope that my CLIC group in the fall will provide a critical mass of 1Ls experienced and enthusiastic about wrestling with cases rather than searching for a rule and moving on. Helping students get things right from the start is a very ASP-ish approach -- empowering, effective, and humanizing.
Tuesday, May 14, 2019
This week, most of my 3L students are taking their last final exams. On Sunday they will graduate, and within a week or so, they will begin preparing to take the bar examination. Twenty years ago, this meant a return to the lecture hall for eight weeks of intensive lectures, surrounded by my closest classmates and a couple hundred other recent graduates. Today, the rise of online courses and live streaming means it is possible to complete an entire bar preparation course without getting out of bed, or at least without leaving one's home. It may be hard in the face of such convenience, but it is important to remind out graduating 3Ls of the substantial benefits of human contact.
One of the first things I tell my incoming 1L students is, "The law is a social profession." Successful practitioners, I explain, know the value of hashing out ideas and strategies with colleagues, and they develop networks of other lawyers to whom they can turn to make (or receive) referrals or to ask for guidance outside of their own areas of expertise. I tell my students this partly to help them to see the benefits of conferring with their own classmates and of taking advantage of mentoring and networking opportunities. But I also tell them because I know that a significant portion of the students in each incoming class needs this kind of encouragement, because they do not reflexively reach out to others for support and information. This tendency is explained in part by their natural inclinations; according to Eva Wisnik, president of Wisnik Career Enterprises, about 60 percent of those who become lawyers are introverts.
By their 3L year, many students, including some of those more introverted ones, have perceived the value of collaborative work, as in study groups and trial teams. Even so, the ten weeks or so between graduation and the bar exam pose new challenges. Some students, tired of the law school grind, envision a comparatively more manageable summer, one in which they can watch videos and undertake exercises online at their convenience instead of on a set schedule. Others may underestimate the time and attention demanded by the bar exam and conclude that the effort of traveling to campus, particularly on a set schedule, is not worth it. Under these circumstances, it may take extra persuasive effort to convince newly minted graduates that there are benefits to seeking out the company of other new graduates.
Still, there definitely are benefits. Full participation in bar preparation courses can be easier to achieve when the courses are seen as group activities in which groups of students commit to watching videos and working on exercises together (and to hold each other accountable for missed work). Group study and review provides additional opportunities for feedback and clarification. And when bar preparation becomes a stressful, tedious, and/or exhausting chore, as it often does halfway through the summer, commiseration can inspire tenacity.
How do you get soon-to-be ex-students to take advantage of these benefits by making particular efforts to associate with their peers, even when the apparently easier route would be to go solo? There are three things to keep in mind:
- Start early. Don't wait until graduation day is within reach to begin encouraging students to think of ways to work together during bar preparation. Social activities are easier to accept when they are perceived as social norms -- that is, just the way people expect to do things. Pointing out the social aspects of legal practice from the first year is one way to begin. Another way of normalizing the expectation that students will make efforts to work together during bar preparation is to encourage recent alumni who have done this successfully to share their experiences with friends from later classes.
- Make it easy. Bar study is difficult and consuming. Having to make special efforts to collaborate may seem like too much, to those overwhelmed by course expectations. Anything a school can do to lower the threshold of energy or attention required to collaborate can help. Provide dedicated space on campus so that bar studiers can easily find each other. Set up channels of communication early and keep students informed of resources and opportunities to gather, and look for ways to connect such opportunities to activities already on students' radar screens (such as live video programs sponsored by bar preparation companies).
- Add value. Finding ways to provide additional benefits to your alumni can change their calculation of whether or not it is worth it to them to step away from solitude and join their classmates, even if only occasionally. Offering small incentives, like free coffee and snacks or access to classroom space, can make getting together more inviting. More ambitious incentives might include providing supplemental live workshops on particular test-taking skills or subject matter areas, which can simultaneously draw students from their isolation and prompt interaction and planning with other participants.
At the end of the day, success on the bar exam does depend on individual effort. But in the face of innate introversion and technological isolation, we can help our students to recognize, once again, that individual effort can be promoted by social cooperation.
Thursday, May 9, 2019
In light of the rough and tumble bar passage declines over the past half-dozen years of so, numerous blogs and articles have appeared, trying to shed light on what factor or factors might be at play, running the gamut from changes in the bar exam test instrument, changes in law school admissions, changes in law school curriculum, etc. In addition, the academic support world has righty focused attention on how students learn (and how we can better teach, assist, coach, counsel, and educate our students to "learn to learn"). Indeed, I often prowl the internet on the lookout for research articles exploring potential relationships among the social (belonging), the emotional (grit, resiliency, mindset) and the cognitive in relationship to improving student learning.
Nevertheless, with so much riding on what is really happening to our students in their law school learning and bar preparation experiences, I am a little leery about much of the research because, to be frank, I think learning is, well, much more complicated than some statistical experiments might suggest.
Take one popular issue...growth mindset. Studies appear to demonstrate that a growth mindset correlates with improved test scores in comparison to a fixed mindset. But, as statisticians worth their salt will tell you, correlation does not mean causation. Indeed, it maybe that we ought not focus on developing positive mindsets but instead help our students learn to learn to solve legal problem and then, along the way, their mindsets change. It's the "chicken and the egg" problem, which comes first. Indeed, there is still much to learn about the emotional and its relationship with learning.
Take another popular issue...apparent declines, at least with some segments of bar takers - in LSAT scores. Many argue that such declines in LSAT scores are indeed the culprit with respect to declines in bar exam outcomes. But, to the extent LSAT might be a factor, by most accounts, its power is very limited in producing bar exam results because other variables, such as law school GPA are much more robust. In short, LSAT might be part of the story...but it is not the story, which is to say that it is not truly the culprit. Indeed, I tend to run and hide from articles or blogs in which one factor is highlighted to the exclusion of all else. Life just isn't that simple, just as learning is not either.
So, as academic support professionals indebted to researchers on learning, particular cognitive scientists and behaviorists, here are a few thoughts - taking from a recent article in Nature magazine - that might be helpful in evaluating to what extent research findings might in fact be beneficial in improving the law school educational experience for our students.
- First, be on the lookout for publication bias. Check to see who has funded the research project. Who gains from this research?
- Second, watch out for positive statistical results with low statistical power. Power is just a fancy word for effect or impact. If research results indicate that there is a positive statistical relationship between two variables of interest, say LSAT scores and bar exam scores, but the effect or impact is low, then there must be other latent factors at play that are even more powerful. So, be curious about what might be left unsaid when research results suggest little statistical power.
- Third, be on the guard for research results that just seem stranger than the truth. They might be true but take a closer look at the underlying statistical analysis to make sure that the researchers were using sound statistical tests. You see, each statistical test has various assumptions with respect to the data that must be met, and each statistical test has a purpose. But, in hopes of publishing, and having accumulated a massive data set, there's a temptation to keep looking for a statistical analysis that produces a positive statistical result even when the most relevant test for the particular experiment uncovers no statistically meaningful result. Good researchers will stop at that point. However, with nothing left to publish, some will keep at it until they find a statistical test, even if it is not the correct fit, that produces a statistical result. As a funny example, columnist Dorothy Bishop in Nature remarks about a research article in which the scientists deliberately keep at it until they found a statistical analysis that produced a positive statistical result, namely, that listening to the Beatles doesn't just make one feel younger...but makes one actually younger in age.
- Fourth, do some research on the researchers to see if the research hypothesis was formed on the fly or whether it was developed in connection with the dataset. In other words, its tempting to poke around the data looking for possible connections to explore and then trying to connect the dots to form a hypothesis, but the best research uses the data to test hypothesis, not develop post-hoc hypothesis.
Here's a link to the Nature magazine article to provide more background about how to evaluate research articles: https://www.nature.com. (Scott Johns).