Law School Academic Support Blog

Manage Expectations

Almost everyone in my family is a massive sports fan.  College football Saturdays are a tradition, so we talk non-stop about the current rankings and debate the what-ifs.  A couple weeks ago after another fun Saturday, my 8-year old concluded Alabama football isn't very good this year.  While many people in Tuscaloosa might agree with him (and want to fire every coach on the team), the statement is absurd.  For non-college football readers, Alabama football has been the most dominant team over the past 15 years.  They expect to win every game.  My son made this pronouncement after they lost their second game this year.  They are still ranked in the top 10 out of 130 teams, which is extremely good.  However, since expectations required perfection, they fell short.

I want to remind all of us to manage our expectations going into the winter season.  For students taking exams, no one writes perfect exam answers.  Professors intentionally construct hard exams.  You will probably miss a few (or more) small nuances.  Everyone will.  You can also still be successful on the exam while missing those nuances.  Also, don't expect perfect grades.  I understand most law students obtained great undergraduate grades.  However, very few people graduate with all A's in law school.  My suggestion for exams is to focus on preparation.  Create a good plan that includes understanding the material, completing practice questions, and seeking feedback.

To our amazing future attorneys (February Bar takers), you will make mistakes.  No one answers every MBE question correct.  The vast majority of students don't start bar preparation with a passing score.  Embrace mistakes as learning opportunities.  Work as hard as you can within your program, but also, give yourself grace.  When you miss an assignment, pick it up tomorrow.  It is easy to miss a day, but don't let it snowball to 2.

For my ASP colleagues, you can't be perfect.  You probably want to hold extra final exam workshops while meeting with every student who needs help and provide non-stop individual feedback.  Unfortunately, there isn't enough time in the day to do everything you want to do.  Your school probably asks you to do more than you can reasonably accomplish in 8-10 hours.  Give yourself grace if you can't get to everything.  Talk to a few faculty members for extra help providing feedback to students.  Encourage students to meet with their doctrinal professors.  Use time blocking strategies to focus on specific tasks long enough to mark things off your to-do list.  Lastly, walk through your law school and smile at students studying.  Your time is limited, but some students just need to see you pulling for them.  A smile could make their day.

The end of the semester is a sprint.  Most of us (students and professors) are in law school because we continually push ourselves beyond our limits.  While I encourage everyone to push yourself to new heights, I also want to remind you that you are Alabama football.  Very few people get an opportunity to go to law school (<2% of population), and even less are ASPers.  Don't expect perfection over the next couple weeks.  Instead, focus on studying or helping students each day.  Try to enjoy the spring through the next couple weeks.

(Steven Foster)

The Manifold Ways of Reaching Law Students - A Blog Post by Louis Schulze (FIU)

In late August, ASU Law Professor Charles Calleros wrote a guest post calling for essay submissions describing different law schools’ academic support programs.

As described before, the purpose of this project is to assemble a number of those descriptions to demonstrate the many ways law schools can commit to their students’ success by investing genuinely and substantially in a robust academic support program. A Short Series of Blogs.  He noted that future contributions to this project would include guest posts by Jacquelyn Rogers (Southwestern) and Louis Schulze (FIU), and he invited others to contribute towards a larger piece. Those interested in contributing to the project should send a draft to me at sjohns@law.du.edu. 

In the meantime, Louis Schulze’s description essay can be found HERE.

Atonement

We all make mistakes. We have all made mistakes that have inadvertently or thoughtlessly hurt others and ourselves. In this season of atonement (Yom Kippur was on Wednesday), we are supposed to confess our misdeeds, ask for forgiveness, and most importantly forgive those who have apologized to us. Forgiveness is a power we all have, but unlike some other super-powers (like laser eyes and Hulk-like strength), it is one we should never use sparingly.

I spend a lot of time telling students to give themselves a little grace. I am guessing we have all told students that they need to stop beating themselves up over the circumstances (or actions-or omissions) that led them to academic distress. Owning whatever the issue was is a great first step but dwelling in the shame of it is not a productive way to achieve success. That being said, I also think that students who do not own their role in getting into academic distress--people who blame the professor, the administration, or anything else without taking on some of the accountability--are less likely, in my experience, to turn things around. We can only change what we control-and if the circumstances that led to academic distress are out of their control, they cannot plan to do better.

One of my favorite traditions of Yom Kippur is something called tashlich where we symbolically cast our transgressions of the past year (in the form of bread) into a body of water (for my family, the Muddy River in Boston). I always joke that our local geese are extremely cranky from having eaten all those sins[1]. It is an exercise in physically controlling our errors and then not letting them take up space in our lives anymore. Does it mean that throwing bread into a river will change your life if you’ve, let’s say, committed murder? Absolutely not. But it does let you give yourself some grace from smaller errors-even where the person who was affected has not used their super-powers to forgive you.

To that end, I will throw my breadcrumbs of misdeeds out to you all and ask for forgiveness. And I will also engage my super-power to forgive others, even those who have not asked for it. I cannot control how others have behaved, but I can control whether or not I let it live in my head, so consider my forgiveness an eviction notice.

(Liz Stillman)

 

[1] I will also always answer the question of how my holidays were with, “Sho-far, sho-good.” You’ve been warned.

Alarming Information on Challenging Students

If you talk to older faculty members, you will inevitably hear about "kids nowadays".  Their inability to read or write complete sentences.  I don't agree with that sentiment.  However, a recent article in Education Weekly indicates the pandemic may have exacerbated problems with some populations access to challenging assignments.  Over the past few years, kids may not have been challenged as much as before, so their skills may be lagging behind.  I believe that may have happened in law school classrooms as well.  The expectations changed to merely survive under the circumstances.  That approach was warranted, but we need to now increase expectations in a way that stays within desirable difficulties while improving student performance.  I find that balance difficult.  Looking to other areas of education may help in that process.  

Good luck to everyone in the new year.

Here is the link to the Education Weekly article:  https://www.edweek.org/teaching-learning/some-students-are-routinely-denied-challenging-work-the-pandemic-made-that-worse/2022/08?utm_source=nl&utm_medium=eml&utm_campaign=cm&M=4913724&UUID=7029b5431a7e3a2a604b5704b1ce9ce6&T=6663472

(Steven Foster)

GLS Conference

The Legal Writing Prof. Blog advertised a conference some of you may be interested in.  The Global Legal Skills Conference Committee is organizing a series of three virtual workshops to help raise awareness about how the war in Ukraine is impacting legal skills education in that country and to provide a platform to discuss ways we can help our Ukrainian colleagues through collaboration and networking.  

Each session will be two hours long -- an hour of presentation followed by an hour of discussion in break out rooms.

First Session: WHAT THE GLS COMMUNITY CAN LEARN FROM OUR UKRAINIAN COLLEAGUES AND HOW WE CAN HELP THEM

DATE/TIME: Thursday, June 30, 2022, 10:30 a.m. to 12:30 p.m. CDT.  

Click here to locate the specific day and time for your time zone.

Plenary session will feature:

• Artem Shaipov,  Legal Advisor/Team Lead for Legal Education Reform, USAID Justice for All Activity in Ukraine
• Serhiy Riznyk, Vice-Rector for Research, Teaching, and International Cooperation at Ivan Franko National University of Lviv, Ukraine
• Prof. Dmytro Boichuk, Head of the Center for Legal Education Quality Assurance at the Yaroslav Mudryi National Law University in Kharkiv, Ukraine
• Mariia Tsypiashchuk, Board Member of the Association of Legal Clinics of Ukraine, Head of the Pro Bono Legal Clinic of the National University of Ostroh Academy,Ukraine
• Adil Abduramanov, President of the European Law Students’ Association in Ukraine.

Follow-up workshops will take place at the same time on:

• Thursday, July 28, 2022 
• Friday, August 26, 2022 

Attendance at each online session will be limited to 100 people, but a recording of the plenary presentations will be made available for those who cannot attend.

Please click here to register for the series.

LSAC Webinar on their new Boot Camp Product

The LSAC is offering a new program to help students transition to law school.  The first conference I attended was funded by the LSAC, and I am glad they are still trying to help law students succeed.  I don't know much about their new offering, but I encourage everyone to go to their Q&A to hear about it.  The information is below.

On Wednesday, June 22, from 12:00 p.m. to 12:30 p.m. ET, join us for a Q&A about Legal Analysis Boot Camp, a LawHub educational program coming in July. The Legal Analysis Boot Camp is the inaugural offering of Law School Success, a one-year subscription priced at $59 that offers academic skills programming to support students throughout their first year of law school. Specifically, there will be a fall semester academic skills program entitled Law School, What You Really Need to Know, and spring semester programming entitled Becoming an Expert Learner.

This presentation is intended for academic support educators and admission professionals.

Register Now

During the program, we’ll preview some of the course content and answer questions about the curriculum of Legal Analysis Boot Camp, which is designed to:

• Equip incoming law students with the basic tools of logical reasoning (including IRAC) that they will use in their law school classes
• Walk students through solving a legal analysis problem, from extracting rules of law from cases, to synthesizing those rules, to dissecting a fact pattern, to drafting an exam answer using IRAC

Register for the June 22 Webinar 

Our presenters — Susannah Pollvogt, LSAC’s senior director of legal education solutions, and Melissa A. Hale, LSAC’s director of learning for legal education — will tell you all about the Legal Analysis Boot Camp curriculum and other Law School Success offerings to come so you can encourage 1L students to participate. A portion of the presentation will be devoted to answering your questions.

Survey says....

I am on the precipice of turning in all my final grades for the spring. I am looking forward to taking a much-needed break before my summer class begins…on Wednesday. What will I do with my abundant “free time” besides walking the dog, feeding the children, laundry, and saving the universe? I’ll probably go through the survey I sent my summer students and pull out the important information to prepare for class.

For the past few summers, I have taught a class for incoming accelerated JD students which is basically a law school success bootcamp. We only meet for six sessions and the class is one credit (pass/fail), but these students are taking their first semester of law school (with a different curriculum than non-accelerated students) over the summer. They will have midterms around the time we are having BBQs, so they need to be quickly brought up to speed. There isn’t a lot of time, so I carefully plan the syllabus and try to get to know students ahead of time by posting a survey.

I always like sending a survey to students before class begins (accelerated or not) because that way I can ask for pronouns and nicknames early. I’ve recently rephrased my nickname question from: “I should call you,” to, “What would you like me to call you?” I did this mainly because every semester at least one student would write their cell phone number in the box below when I used the former phrasing. It did make me wonder if they really wanted me to phone them and I was disappointing them by just chuckling at how literal they were being.

I try to ask some fun questions, like TV shows they have recently loved and whether they have food allergies (I like to bake for my students without harming them). I also ask if there is anything I need to know about them-and offer both some multiple-choice options and a blank box for “other.”  They can check all that apply. One of the choices I offered this summer was, “I have recently been abducted by aliens and enrolling in law school was a condition of my release.” I got 11/21 checks on that box, so I am thinking this will be a fun group. I also got some important pieces of information: I have a lot of students who have been out of school for a while, a bunch have children or parents they are caring for at home, one is pregnant, and one has a degree in musical theater (which is great to keep in mind for when I finally get to stage “ASP: The Musical”).

My final survey question was new for this class. Since we have limited time together, I want to be sure I can offer as much support as possible (support is our middle name, after all). So, I asked, “My most pressing question about this class, or law school in general, is…” and put a text box below for their questions. Here are a few of the questions I got (almost every student who answered the survey had one):

1. What is the most important thing to do to succeed?
2. What are some common mistakes or missteps you see your students take?
3. What proactive steps can I take to ensure that I have a job right after graduation in the field of law I prefer?
4. My interests and enthusiasm regarding a particular field/area of law are still quite varied. Is there a typical semester or point in time where most undecideds choose a specific path?
5. Will I still be able to have normal life?
6. When is a reasonable time in one's law school-career for their anxiety level to decrease to a normal level?
7. Are we gonna live?

These are not questions that can be answered with a shrug and a joke about the traditional law school answer being, “it depends,” even though it might be the right answer to some of them. The last three questions in particular need to be carefully addressed at the start, middle, and finish of classes, semesters, and years in law school.  A simple: “no”, “maybe never”, and “holy sh*t, I really hope so” just aren’t going to suffice.

So, to roughly paraphrase Phineas and Ferb[1], I know what I am going to do tomorrow.

(Liz Stillman)

 

[1] Yes, again, can you believe it? I should really go through the survey question on TV shows and pick something intended for adults….

Defending Self-Critique

Law schools have not yet fulfilled the Carnegie Report’s call for more formative assessment.  One reason for falling short is conflicting narratives about what is “good” formative assessment.  One specific narrative seems particularly troublesome:  That the only legitimate method for providing formative assessment is for the instructor to sit down with each student and explain their errors.  This post pushes back on that narrative.

1. Self-critique is more effective than we appreciate.

Most would agree that individualized feedback from an instructor, the expert both on the subject and the way the student will be graded, is most effective.  But especially when using a model answer or quality student answer,[1] allowing students to compare their work against the ideal version, doing so not only assists with doctrinal comprehension, legal writing, and exam skills, but also builds metacognitive abilities.[2]  Having the capacity to determine one’s own weaknesses is crucially important, as demonstrated by countless studies showing the performance-enhancing effect of improving metacognition.[3]

The assumption that all feedback must come from the instructor certainly undercuts the mission to improve students’ metacognition.  When students find themselves professorless during bar study, they will scramble around helplessly if they have absorbed the legal education fable that only professor knows best.  Moreover, new lawyers will certainly struggle in the early years of practice when they need to run to the partner/ division chief/ client to do the metacognitive work for them.

Although some students certainly will do a poor job of self-critiquing (“I mentioned res ipsa loquitur just like the model did!  I should get full points!”), this is no reason to underappreciate self-critique.  First, in my experience, most students DO figure out their weaknesses from this process.  While before the self-critique process they think their C-minus should be an A-minus, seeing the student essay that booked the course tends to leave them thinking otherwise.  Second, even if the student still does not see the problems, this is where academic support faculty come in.  In partnering with doctrinal faculty, academic support faculty can meet with underperforming students and comment not on the law but on the student’s metacognition.  This method distributes personnel resources in a way that makes robust feedback more possible, fosters metacognition, demonstrates to students the valuable connection between doctrinal and academic support faculty, and frees up time for doctrinal faculty.

2. Calcifying the status quo.

A particular danger with the solely instructor-based feedback narrative is that it preserves the status quo.  We all know that formative assessment is lacking in legal education.  The principal argument against remedying that problem is that individualized feedback is so time-consuming that one can accomplish little else.  When those inclined to pursue efficient formative assessment are then met with the chorus of voices claiming that self-provided feedback is inadequate, they throw the baby out with the bathwater, dismiss formative assessment, and turn back to the same one-final-exam process used since 1877.  Therefore, creating this strict dichotomy between individualized feedback and self-provided feedback makes the perfect the enemy of the very good and leaves students with nothing instead of at least something.

Final thoughts.

None of this is meant to say that instructor-led feedback is unnecessary or inferior.  Feedback from course instructors is crucial.  But when that type of formative assessment is not feasible, self-critique is a solid option.  

There is a lot more to discuss on this subject.  Unlike almost all other graduate programs, why do we think that TAs providing feedback is an unspeakable heresy?  Why do we almost never use summative assessment as formative assessment by improving the process of post-semester self-critique?  (FYI, simply letting students see their exam answers does not accomplish this goal.)  Why do we see testing only as formative and summative assessment but not as a learning tool in-and-of itself? 

Unfortunately, the time constraints on writing about the time constraints of formative assessments are such that I have to stop tying now.  Ironic.

 

Louis Schulze, FIU Law

--------------

[1] Self-critique without a model answer is possible, too, but I concede that having a model answer is preferable.  To those who would avoid providing such an answer because doing so would take time to write or risk being imprecise, I would argue that a simple solution is to release the strongest student answer.

[2] Metacognition is the process of assessing one’s knowledge:  Do I really know the felony murder rule, or do I just think I know it?  As I tell my students, it is like hovering over one’s knowledge and objectively scrutinizing one’s real comprehension.

[3] See generally J.A. Gundlach & J. Santangelo, Teaching and Assessing Metacognition in Law School, 69 J. LEGAL EDUC. 156 (2019) (reporting on empirical study of first-year law students, finding that students who demonstrated strong metacognitive skills were more likely to perform well).

The Secret Sauce - Not So Secret

As author Kathryn Rubino poses: "What if I told you there was one thing you could do in your 1L year that would improve your grades in all your classes?" Rubino, K., One Thing Can Improve All Your Law School Grades, Above the Law (May 2, 2016). Frankly, that sounds too good to be true.  

"Well," as Rubino writes: "it isn't science fiction. There is...research from Dan Schwarcz and Dion Farganis at University of Minnesota Law School suggesting that law students who get individualized feedback from their professor in one subject are more likely to do better in ALL their classes (emphasis in original)."  Id. Still have doubts about the power of individualized feedback to really change lives? Well here's a link to the research so that you can make up your own mind:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2772393

In my own case, I sometimes forget the power that one can have in the individual moments.  As an academic support professional, sometimes I fear that I am looking in all of the wrong places, aiming for some momentous program that will change lives for the better. But sometimes the key to change is right in front of us, if we only look.  Just one 1L faculty member, providing individualized feedback to just their students in that one class, can have life-changing impact for that professor's students - across the board.  That's something to cheer about, and to get on board with too. (Scott Johns).

 

Peer Pressure, Vaccine-or-Test Requirements, and Legal Analysis

In working with bar applicants preparing for the February 2022 bar exam, I keep hearing concerns about analogical reasoning, one of the legal analysis skills tested on the bar exam.  And, for first-year law students, many whom are taking persuasive legal writing courses this semester, analogical reasoning is a key persuasion method.

I noticed the power of analogical reasoning while reading an article describing the Supreme Court oral arguments last week in the vaccine requirement case. J. Bravin, et al, "Supreme Court Shows Skepticism over Biden Vaccine or Test Mandate," WSJ (Jan. 7., 2022).

As a bit of background, the Court was considering two issues, first, whether the federal executive branch had power through OSHA via Congressional authorization to mandate covid-19 vaccines in workplaces with more than 100 employees, and second, whether the federal executive branch through its Medicare and Medicaid Office had congressional authorization to mandate covid-19 vaccines for medical personnel working in medical settings and receiving funds from the federal government.

The U.S. Supreme Court split the issues (with a split court too).  In a 6-3 decision, the Court held that OSHA did not have the regulatory power to mandate vaccines in large workplaces while, in contrast, in a 5-4 decision, the Court held that the executive branch has such power in the medical field for those receiving federal government medicare and medicaid funding.

Already, we see a tension between the two holdings.  Those tensions require explanations and that's where you, as an attorney, are critical.  It's your explanation of similarities or differences that constitutes analogical reasoning. And, to the extent that your explanation of those differences or similarities is persuasive is what I call "analogical reasoning as a form of peer pressure." In short, analogical reasoning suggests that you have friends, powerful friends and powerful tradition that backs the position that you are now arguing on behalf of your client.

Take last Friday's oral argument over the "vaccine or test" requirement.  In the workplace requirement case, Justice Sotomayor asked of attorneys: "What’s the difference between this [vaccine or test requirement] and telling employers, where sparks are flying in the workplace, your workers have to wear a mask?"  Id.

In other words, the Justice is asking an analogical question, seeking an explanation as to why the vaccine requirements are any different than other normative OSHA workplace safety requirements, such as masks to protect industrial workers from flying sparks and fire hazards.  That's not an easy question to answer. It requires much of us - curiosity, courage, and showing connections.

The premise behind the question is that no one doubts that OSHA has congressional authority to regular workplace hazards with reasonable tools to prevent harm that, at the same time, allow workers to complete their work successfully.  Masks to prevent workers from suffering eye injuries due to flying sparks is just such a prototypical regulation that is, obviously, permissible.  That's the "peer pressure" component.  Once that is settled, the party who opposes the vaccine or test requirement now has the burden to show how covid-19 is different from other types of workplace hazards, such as flying sparks.  It's not impossible to do but it requires deep thinking.

As a tip, you might try an exercise, listing in one column the precedent situation (masks to prevent spark hazards) and the other column the disputed situation (vaccines to prevent virus hazards).  Then, under each column, brainstorm possible differences and similarities, as many as possible.  Once you've finished brainstorming, now look for connections that might explain how the two situations are similar (and why) and for differences that might explain how the two situations are dissimilar (and why).  

The art of analogical reasoning is then explaining which of those two (similarities or differences) is more persuasive, moving, and powerful and why that is the case.  That's analogical reasoning.

For the OSHA requirement, we might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are similar in that both are hazards that are preventable, that are prevalent in the workplace because of the close working conditions between workers and the hazards faced, and that the workplace situation exacerbates the hazards because of the duration of time that workers are present in the workplace.  In contrast, one might say that the two situations (masks for spark mitigation versus vaccines for virus mitigation) are dissimilar in that sparks are hazards not common to the public at large, tied specifically to the type of work done, and limited to particular workplace activities while the virus is widespread regardless of whether one is working or not, the virus is not the byproduct, like sparks are, of producing products or services for the employers, and that the virus is not limited to specific workplace activities but is present everywhere and in all such that if OSHA has that power it has virtually unbridled power, at least one might say.

At bottom, analogical reasoning is about using comparisons and contrasts to bedrock principles and trying to extend or prevent extension of those principles to new or novel situations.  In short, it's a form of peer pressure, which, in my own case, is one of the most powerful pressures of all.  So be friendly when you engage in analogical reasoning.  Don't press too hard.  Let your explanations do the pressing.  (Scott Johns).

 

ASPalooza

Happy New Year!

I know that we are still basking in the (blue light) glow of the ASP sessions of the AALS annual meeting, but I wanted to make sure that I mentioned a few of the highlights (ones that I saw-I probably missed some important things since the AALS session schedule is like a Cheesecake Factory menu).

First, my amazing colleague at Suffolk University Law School, Sarah Schendel, was honored with the Trailblazer Award at the annual meeting of our section on January 4th. This was a richly deserved recognition of her scholarship and contributions to ASP! Also, we welcomed new leadership to our executive board and thanked our past leaders for their amazing work.

The Academic Support and Technology, Law and Legal Education Joint Program (Co-Sponsored by Pre-Law Education and Admission to Law School) panels on “Leveraging Technology to Increase Student Engagement in Online Courses” and “Who Should Own the Course Content Created for Online Delivery?” on January7th were informative and timely--considering that many schools will likely reopen remotely this spring (we are going remote for the first two weeks). Charles Calleros wonderfully explained the best practices to establish and maintain student engagement. I loved the idea of creating a more flipped experience with DIY videos paired with short quizzes that Martha Ertman discussed. Our own Louis Schulze’s methods of using the Zoom chat to empower students to be experts was incredibly interesting. The other methods he outlined to keep students engaged were really helpful as I organize classes for the upcoming semester.  Jane Grise’s discussion of how screens effect our reading and attention was something I will be absolutely be more cognizant of in planning my two weeks (hopefully!) of remote classes -she also presented us with an opportunity to get up and dance (well, she said to stretch, but it was a Friday and all).

The next panel on the ownership of created materials used in online delivery was eye-opening (and full of twists and turns). While the work-for-hire doctrine might make our scholarly writings and course materials (absent contractual provisions to the contrary), the property of the schools we work for since we are employees, the panelists (and some great questions from the crowd) have left me wondering who has rights to our created ASP study techniques and skills materials since these are mainly expressions of ideas and whether writing is actually within the scope of my employment. I will be looking at my employee handbook more carefully to determine our institutional intellectual property policies. I took three pages of notes on the applicable intellectual property law during this panel-and later this weekend, I’ll be sure to put them in outline form (little ASP humor).

All in all, I was reminded, yet again, of how amazing the ASP community is-we are intelligent, prolific, and generous.

(Liz Stillman)

New Perspectives

Raise your hand if you told your child to do something, they ignored you, and then 2 days later they thought someone else was brilliant for telling them the same thing (go ahead, raising your hand can be therapeutic).  Raise your hand if you provided a piece of advice to a law student, they didn't fully buy in, and then they "discovered" the same piece of advice later that semester from someone else. 

Most of us probably don't have another hand to hold up, so I will stop there.  I don't think ignoring our advice is malicious or failing to trust the speaker.  Sometimes, people need more persuasion to make changes.  Sometimes, a different way of conveying the same information helps people.  Either way, new or different perspectives help.

New or different perspectives help ASPers as well.  The regional ASP conferences are starting with registrations and calls for proposals.  I encourage everyone to think of a proposal and submit at least 1 this year.  You are doing amazing things in the classroom and individually with students.  Share that with the rest of us.  I understand many people worry they aren't doing unique things.  First, don't sell yourself short because you are creating unique experiences for students.  Also,  you may be able to provide a perspective others haven't seen or explain a different way to teach something that would help others.  Our community continually improves as we share ideas, activities, perspectives, and challenges together.  You can help contribute to that progress.  

We tell our students to stretch beyond their comfort zone.  I encourage many in ASP to stretch as well.  It will help you and many of us improve student experiences.

(Steven Foster)

The Magic Formula of Legal Writing

When you Google “magic formula,” you get a series of articles all referring to the “Magic Formula of Investing” which is based on a book written by Columbia University Professor Joel Greenblatt[1]. That formula is often defined on websites as, “… a simple, rules-based system designed to bring high returns within reach of the average investor.”[2]

The first set of 1L legal writing memos were due over the weekend. For our students, it was a closed objective memo involving essentially two issues, three cases, and one overarching statutory rule. I must have discussed and drawn the chart that accompanies my magic formula for legal writing easily twenty times in just the past week, in person on a 3x5 post-it note, or over Zoom. I have shared my formula possibly thousands of times over the years. I would describe it as a rules-based system designed to bring good analysis within the reach of the average legal writer.

This is the “magic formula” that I share with my students:

1. Start with a Rule. A well-synthesized, complete rule is the key to everything. Everything unspools from your rule. It shapes and orders your discussion of the cases and your analysis of the facts. The rule divides your small legal world into essentially yes and no. Some cases will fall on the yes side of the rule while others will be nos.
2. Your rule may come from more than one source. Cases, statutes, regulations etc. may all be relevant.
3. Do your research. You need to use cases on both sides of the rule divide.
4. Talk about cases in the past tense-they have no value but historical value. Precedent is about the past and how it shapes the decisions that will be made in the future (stare decisis).
5. Use the Facts, Holding, Reasoning (FHR) method of using cases in your writing. For example: In Claus, where a senior citizen was struck by a reindeer, the court held that the sleigh driver was not liable because plaintiff’s decedent was walking on the reindeer path. The court reasoned that "grandma" assumed the risk of walking on the path, and while the driver had less than ideal lighting conditions, a pedestrian on the path was not a foreseeable event. I know-I haven’t even decorated for Halloween yet and here I am putting a winter earworm in your head. I’m almost sorry.
6. While this is somewhat formulaic writing, you can control your narrative. We all teach this, but possibly in different ways. Here is where the chart below comes in handy. In paragraphs where you are explaining the law in your writing, think of this as the space where you place cases on a spectrum created by dividing your world by the rule (this would be E paragraphs in CREAC, and the first part of the A in IRAC). You should place your cases (using the FHR format) on this “spectrum” and then when doing your analysis later on (or soon thereafter in IRAC), put the facts of your current “case” on the spectrum as well. The place where I put the circle is where the facts in front of you go-this is the sweet spot-the facts are not a slam dunk “yes” like case 1, but better than case 2--while still staying on the side of the rule you want to be on. The court cases closer to yours are your positive analogies because the facts are more similar, and you distinguish the cases on the far side of the rule. You only create this “distance” by having a full spectrum. The key here is that you, as the writer, get to lay out the spectrum.

Honestly, this is probably old news to most of you. But on the off chance that this rules-based system brings good analysis within reach of the students you are working with, I feel it was worth putting out there.  Some might say there is no magic in legal writing, but as for me and grandpa, we believe.

(Liz Stillman)

 

[1]https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxla3JvbmVkZXNpZ258Z3g6MmI0OTZjZTI1OTNhZTMwNw

[2] https://www.investopedia.com/terms/m/magic-formula-investing.asp#the-bottom-line

Seasons of Law

A supermarket I go to occasionally has a little maze of seasonal items right at the entrance. This is a tricky way to entice you to purchase these colorful things at the beginning of your shopping trip when your cart is empty and/or perhaps a way to mollify any small child you have brought with you with something small to play with on the journey. Yesterday, when I arrived, I saw a sea of orange and black: candy as far as the eye could see. There were also some decorative scarecrows and rust colored “hardy mums,” (which I consider a challenge, but more on my lack of gardening skills in another post). In the middle of the maze, I saw a single display of popsicle shaped window clings, Whiffle bats, sunscreen, some mismatched kickboards, and s’mores skewers-all 50-75% off. Summer was on sale-despite the fact that there is at least another week of it on the calendar. I sighed and realized that we had actually already been in school for almost four weeks and the time had come for the seasonal shift from merely briefing cases to…(please read each of those periods as dun, dun, dunnn respectively): OUTLINING.

Now that students have covered at least one full topic in each class, the time has come for them to take those case briefs and carefully written class notes and knit them into a nice cozy outline for December exams or, more urgently, upcoming midterms. This is also a good time to start because it intersects with students learning how we use and talk about cases in their legal writing courses. The magic formula of how we use cases in memos and briefs: FHR (facts, holding, reasoning) is how they can incorporate the components of their case briefs into their outlines. This is really a win-win because they are practicing using the FHR formula for outlining in legal writing and vice versa. 

Now, I know you have probably discussed outlining at least twice already with students. We do it in a pre-orientation module, during orientation itself and have a class on it planned for the coming week. The number of times I say, “your outline should be rules based rather than case based” could be a drinking game at this point (not that I condone drinking while outlining as either effective or efficient).

How can we best communicate the message that it is currently prime outlining season to our students? I thought of the buzzer at the beginning of a swim meet heat, a ribbon cutting or even a giant banner, “START OUTLINING NOW!!!!” Maybe I should stand in front of the law school with a sandwich board that says, “Ask me about outlining-I’m not just an ASP professional, I’m a client!” Maybe we should perform, “Outlining the Musical,” with such tunes as:

“525,600 pages,

525,000 pages more,

525,600 pages

How do you make sense of a course in the law?”

Or even,

“Oh, it is time to start ‘lining,

Time to take a little of the briefs we’re writing,

Time to take time,

Because it’s already fall--exams are in just no time at all….”

(sincere apologies to Rent and Pippin).

Yet, we all know that no matter how or how often we sound the alarm at this point in the semester, we will still be talking with students who are just getting started in November. And while we will silently groan and do an internal face palm, we will advise those students to move as quickly as they can to ideally finish their hastily organized (but nonetheless helpful) outlines when classes end.

I expect that the next time I will need to think about getting students to begin outlining, the supermarket entrance will be aglow in red, pink and white: candy as far as the eye can see -- except for the candy canes in the center on sale.

(Liz Stillman)

Unmasking

Since classes started last week, we have had a lot of chatter on our faculty list-serv about teaching while masked. Last year, most faculty members taught unmasked from home, so this is new for them. Yes, your mask gets gross after about thirty minutes and, also, yes, it is hard to be understood and understand students when everyone is masked. Yet, it is nice to be back in a classroom and feel that energy even when I am not sure I could pick my students out in a line-up. I was contemplating a blog entry about the best masks for teaching or learning in classes that are longer than one hour-but I am still doing that research[1].

But what about the other masks that we are all wearing in class? The ones that do not obscure our noses and mouths, but rather the ones that obscure how we feel or our point of view? I am usually concerned about the things I can’t see about students even when their faces are visible to me. I know that my students on academic warning are multi-faceted and that they find themselves on academic warning[2] for a number of reasons-many of which many not be academic. I want to see them regardless of how we are conducting classes.

So, I asked them to show me who they are behind the mask. I didn’t have anyone unmask in the classroom, but the first request for the class was to take a survey (not an assignment because I was asking some questions that might be considered more personal than students are comfortable answering). I had started doing this last fall during remote teaching to ascertain technology and space constraints on the advice of my amazing department chair for my undergraduate classes. I threw in a few fun questions like whether or not talking about the ending of Bridgerton or Wandavision would be a spoiler and which one of my pets they would like to see come to class for a visit (I underestimated the number of guinea pig fans, but she made her cameo nonetheless).

This year’s survey was a little different but began with the usual getting to know you questions like names, what you would like to be called, pronouns etc.. I asked about what they will miss most about remote learning (the commute was the number one answer there, followed closely by snacks). I asked open ended questions about things they think I should know about their learning style and ways we can make our class a community. I asked about what things outside of school might impact their academics and about what skills/knowledge they hoped to leave the class with. I got some very thoughtful and helpful ideas about what I could do to make this a useful class. I know students had to give up another class to take this required class and knowing what students want from it and how they would like it to happen is incredibly valuable information.  This class doesn’t work without buy-in from students, so knowing what they are shopping for is always better.

Finally, I asked about attending the class in-person. It was the last question in the survey. The question prompt was “In person learning is:”. Unlike other multiple-choice questions they will encounter this year (and beyond), there were no wrong answers and you could check as many as applied. The choices I offered were: “Amazing”, “New for Me for Law School”, “Scary”, and “A lot and I am Overwhelmed”.  Out of the twenty students who answered the survey (from a class of 22), 14 said this was new for them, 5 said it was scary, 4 said it was overwhelming and slightly more than half (11) thought it was amazing. Interestingly, but not surprisingly, no one checked just one answer. In retrospect, maybe I should have offered an “All of the Above” option because that is the option I would have chosen.

I still may not be able to recognize everyone when (and if) we unmask at some point, but for now, I see them clearly.

(Liz Stillman)

 

[1] The masks with the clear mouth area creep me out. I get a beginning of Rocky Horror coupled with Pennywise vibe from those, so they will not be appearing on that list.

[2] Intentional use of the passive voice.

Closing Night

Tonight will be closing night for my kitchen table classroom. The latest word from my school is that we will be teaching in person next semester, in our regular classrooms with the regular number of students. So, I will strike this set. I will pack up the books, papers, RBG and Kamala Harris action figures and bring them back to my “real” office in the next few weeks. I’ll store the mesh metal inbox and pen holder (that my nephew left behind when he finished college and didn’t want to drag back them to his home abroad) in the basement. I’ll unpack my box of “Zoom worthy” earrings and return the contents to my bedroom jewelry box. I don’t know what I will do with laptop stand, because I already had one in my office, but I’m sure I’ll find a place for it that will escape me when I need to find it again.

In the past 15+ months of this pandemic, I have used this table as my classroom, my desk, the venue for our Thanksgiving dinner (once) and our Passover seders (twice). I have shared this table with my adult daughter as she worked at one end while I taught my classes at the other. She even did a cameo of me on April Fool’s Day before she headed back home (she does a dead-on imitation of my Zoom classroom patter). I cleared space for my younger daughter to finish her college exams this spring when they were sent home a few days early because of an uptick in positivity. I watched my son literally crawl behind me (numerous times) to get to the refrigerator during my class so he wouldn’t be seen. I wasn’t going to tell him that I had a virtual background on-or that we were in breakout rooms. We all needed more laughs. As the seasons changed, I learned how the light shifts in this space and how to avoid looking like an old detective show’s interrogation subject on Zoom during winter faculty meetings.

As the lights on this run begin to dim, I have been Googling dining tables and chairs because I just don’t want to look at this table anymore. I think it is ready to retire after 25 years, three children and over a year of being a classroom/home office. And yet, I hesitate to replace it just yet, because maybe it will look different when it isn’t doing so many jobs. Maybe, once this table is just (to very loosely paraphrase Freud) a table, I’ll be able to see it with new eyes. Maybe, I’d even miss it.

In the fall, I might miss having food, Coke Zero and coffee immediately available, or a bathroom that does not require a key. Will I miss the cat snoozing just outside of camera range or my dog punctuating my most important points (that coincided with mail or package delivery)? I don’t think I will miss the chaos of people walking through my classroom/office making noise or slamming doors. I don’t think I will miss my ritual morning clean-up of this space because in my “real” office, the only person who might leave debris on my desk would be me. Will I enjoy being alone in a quiet space after over a year of knowing where everyone in my immediate family is and what they are doing? Will people judge me if I sit at my desk and watch Gilmore Girls while I eat lunch at the office? And, to be utterly cliched, nothing beats the commute or current dress code. Change, even good change, is hard.

As part of my cleaning this morning, I pulled out my Swiffer. As I swabbed under the table, I realized that the chair that I had been sitting in all this time has left four distinct worn spots on the wooden floor. A scar left by the pandemic. I immediately started to google how to best erase or cover the spots but then I stopped. Like the ghost light left on after the theater is dark for the night, these spots need to stay.

(Elizabeth Stillman - Guest Blogger)

A Few Possible "Big Picture" Thoughts on ASP Best Practices

Ah, just about the middle of the summer.  It's sort of like the 7th inning stretch in baseball, a time to stand, sing, and refocus a bit.  Especially with so many of us working with so many of our recent graduates as they prepare for remote and in-person bar exams. It's an opportunity for a quick breather before the final three weeks of bar prep polish and work.

Personally, this weekend is an opportunity for me to step back a bit, to take a look at what I ought to really be focused on, to ask how would others view the programs that I am responsible for delivering to our students and graduates.

Well, to be honest, I'm a bit afraid to ask others.  But, as I think about preparing for the upcoming academic year, I thought I'd share the follow as food for thought about "ASP Best Practices."  I'd love to hear your suggestions and comments too.  P.S. Thanks to Visiting Prof. Chris Newman (DU Law) for development of this slide and his insights too. (Scott Johns).

Last Call

Have you ever been at a bar at last call, when they turn on the lights and what was a magical place in the darkness transforms into a dirty, tacky room that you would not have entered if you had seen it this way at the beginning? I think that is where our students are in this year of pandemic teaching and learning.

Yesterday, at the end of class, I told my students that I was there for them, I saw them and asked what I could do to help them get to the finish line this semester. We had about four minutes of class time left, and I wanted to acknowledge that our once-a-week class had two boxes left to check off before the semester ended. A student raised her small yellow emoji hand and asked, “where can I find the motivation to move forward? I seem to have lost it just when I need it.” There was a lot of nodding. Cameras that had been off for the past hour came back on. I sighed, took a deep breath, summoned my inner Kate McKinnon, and paraphrased her entirely accurate statement on the Dec. 20, 2020 episode of Saturday Night Live, "It's like the light at the end of the tunnel has shown us how stinky and bad the tunnel is." There is so much truth in this. Seeing what we have been through as we near the end of it is an exhausting place to be stuck as finals approach.

So, I tried to find something that might re-ignite motivation. I had to admit that the semester ending wasn’t enough of an incentive to get to the end of it. I had to also admit that there is no easy answer to that question except maybe, while it seems like a time where things don’t matter and that the pandemic blip will explain any so-so grades, the truth is that the pandemic excuse will have a pretty short half-life. So, I told them it does matter. The grades will start to matter; the approach they take to getting them will matter more, and most important of all: they matter. We have not given up on making sure they learn because their learning-even under these strange circumstances-will always be what matters.
I asked them to find a morsel of normalcy every day from now until exams end and make a list of these things. I showed them the flowers I bought at Trader Joes in cheerful shades of yellow, coral and orange and urged them to find something beautiful to look at when they are down. Spring is exactly the right time of year to see these things changing daily. I suggested going to the ocean (but no swimming yet, it is still cold here in Massachusetts!) and understanding in its vastness that they should, occasionally, feel that they can be small and not in control and that is okay. But I also told them that nothing I say is a one size fits all pep talk: flowers and water will not solve all problems and that my advice was not meant in any way to diminish their very real feelings of despair. I offered to meet individually with anyone who wanted a tailored pep talk. I reminded them about the counseling center and our Dean of Students office.

But truly, I had no answer that might find lost motivation. I am hoping it is merely misplaced and that time, light, flowers, waves, vaccines and kindness will help us find it.
In the meantime, I will pull out my virtual pom-poms, cheer students towards the goal and raise my glass to the day that we can consider this awful and now illuminated tunnel completely behind us.

(Elizabeth Stillman - Guest Blogger)

Missing Spring Break

I don’t know about your law school, but we did not have a regular week-long spring break this year. Instead, perhaps as an afterthought, we were awarded a one-day reprieve which occurred on St. Patrick’s Day…in Boston (people who have ever lived in Boston will know what I mean).

I truly understand why we did not have our usual break. We are part of a university that has undergraduates, as well as a business school, and we did not want students leaving and returning to campus in the middle of a pandemic, especially since these students are most likely to be vaccinated in the last wave. As a result, we started a week later in January to allow more self-quarantining and to keep our end dates and commencement on schedule. One Wednesday in the middle of March made sense from a strategic planning point of view.

And yet, this is the week I have spent the most time talking to tearful and anxious students who have hit a wall. This is also the week that students have disappeared from my radar and I have had the most correspondence with our Dean of Students Office about students I am worried about. I have begun starting my emails to them with, “me again...” and ending them with, “again, sorry to add something else to your plate.” Joni Mitchell was absolutely right when she said, “Don't it always seem to go; That you don't know what you've got till it's gone.[1]” Sigh.

The one class I teach on Wednesdays is a one-credit MPT driven class. We meet for about an hour at the utter apex of the workweek: high noon. I am never sure if I should ask how everyone’s weekend was or whether I should wish them a good one-it is an awkward time for small talk. I’d like to think that this class, at its silly time, is an oasis in an otherwise Zoomful chaos. Since spring “break,” fell on our class day, I told the students in this class that I would consider the day sacred and assign no new work or have any assignments due, so long as they each did something that gave them joy and send me a picture to prove it. I wanted students to think that the one “assignment” they had, for the one day of break they had, was to do one thing that brought them joy. In return, I promised I would send them my proof as well.

As usual, this class of students did not disappoint. The first picture I received was of an absolutely adorable baby and the caption, “I’m spending some time with my niece!” This was followed by a selfie of a student driving a few dogs to the dog park-even the basset hound looked cheerful. So far, I have received photos of snuggly kittens, excited meetings with friends, a birthday cake, a recent publication, a dog who had lost a battle with a skunk but smiled at a bath, a bubble bath drawn and ready (for a human), a map of a five-mile run, and a pizza from a favorite place shared with a favorite person. The picture of a visit with a grandmother--for the first time in a year-- made me cry. In return, my students got a series of shots from me that included: a recipe, my gathered ingredients, batter in a pan, and, finally, my son eating a gooey brownie. The fact that not everyone was in a position to engage in happy activities was not lost on me either-there are no consequences or penalties for not sending the picture and pictures were sent only to me, not the whole class.

While our Wednesday off was something, it was also clear that one day was not enough of a break for students in times that are already fraught. It is not enough time for a student to turn away from the pressure of law school and then, refreshed, turn back to finish up the semester. Everything we do these days seems both rushed and suspended in time, abbreviated and yet drawn out. I worry that we will crawl over the finish line at the end of the semester at exactly the time students need to summon the energy to run. Safety and wellness do not belong on opposite sides of the same scale and I hope that we are not forced to weigh them against each other again. Next year, may we all find ourselves somewhere with, “a pink hotel, a boutique, and a swingin' hot spot[2]” for spring break.

(Elizabeth Stillman - Guest Blogger)

 

[1] https://www.youtube.com/watch?v=2595abcvh2M (last accessed March 19, 2021).

[2] Id.

Predictions Are Hard, Especially About the Future

Here it is, Tuesday evening, and I am finally settling down to write another blogfest – this, like many weeks, despite having specifically placed this high enough up on my to-do list that I genuinely expected to be starting in the early afternoon. The problem – one I am sure we are all familiar with – is not the writing, but all the other things I had planned to finish beforehand, which took far longer than I had originally estimated they would. Fortunately, such difficulties are illustrative of this week’s topic of discussion – the planning fallacy and how to counteract it.

The planning fallacy is a simple psychological phenomenon: human beings’ predictions about the time needed to complete a future task are usually significant underestimations. In some cases, wild underestimations: for example, when construction began on the Sydney Opera House in 1959, it was expected to be completed by 1963, but the site was not actually finished until 1973. Daniel Kahneman and his partner Amos Tversky were the first to describe this phenomenon, more than forty years ago, and Kahneman writes about it in his wonderful book, Thinking, Fast and Slow. He explains it as a kind of optimism bias, a tendency of people to adopt the rosiest scenarios as they imagine how a task will proceed.  Later scholars added other nuances to this explanation.  One reason for this apparent optimism bias, for example, might be the self-serving human tendency, when considering similar past situations, to take personal credit for all the things that went right (and thus assume they will go right again in the future), but to attribute errors and delays to outside forces that they presume will not occur again.¹  Nassem Taleb, in his book Antifragile, suggests it may not only be a psychological phenomenon, but also a consequence of a natural asymmetry: whenever circumstances or events cause a deviation from a well-laid-out plan, chances are far greater that the disruption will lead to delay than to expedition, so that the sum total of all deviations would always be expected to be postponement.

How many times have we seen the planning fallacy in action amongst our students? Just in the past month, I have met with returning students, vowing to perform better in this coming spring semester, who base this determination on unaccountably confident projections of all the steps they will complete to do so.  I have worked with February bar examinees, noses to the grindstone, who despite their genuine efforts are finding themselves slipping behind their intended schedules.  Not every student suffers from this bias, of course, and many of those who experience the bias don't actually suffer for it, either because they start with ambitious goals that leave plenty of leeway or because they find the extra time and energy to offset their underestimated projections.  Still, every year brings a significant crop of students who do not perform as well as they might have, because they seriously underestimate how long it will take them to complete an essay test question, compile a useful outline, learn the rules governing a specific legal topic, research, draft, and edit a significant writing assignment, or attend to the demands of student organizations.

Fortunately, the psychologists and scientists who have studied the planning fallacy have suggested a few strategies that can be used to counteract it, and these strategies are easily adoptable -- or correspond to techniques already used -- by academic support professionals.  In his book, Kahneman suggests the use of reference class forecasting -- that is, making predictions of the time needed to complete a task based not on a person's (or an entity's) internal sense of how long it should take them, but on observations of actual outcomes in prior similar situations.  In other words, if I were going to build an opera house, I might start off by assuming I could get it done in a few years, but if I considered how long it took to build the one in Sydney (and of course in other locations), I should understand that it is likely to take more than a decade.  Many of us do something at least adjacent to this with our students already -- providing them with estimates about how long they should expect to take to complete a case brief, for example, or to study for the MPRE -- but the idea of reference class forecasting suggests that it might be even more powerful to refer specifically to prior performances by other students.  Instead of saying, "You should devote at least 24 hours," it might be more effective to say, "Last year, every student who devoted 4 hours a day, every Saturday and Sunday, for three weeks, completed this successfully."

Another suggestion is the use of the segmentation effect. It has been observed that a person's estimate of the total time it will take to complete a task will be longer -- and thus likely more accurate -- if they are asked to segment the task (break the task down into a number of sub-tasks), to estimate the time it will take to complete each sub-task, and then to add all those times together to come up with the total time.²  However, there is a cognitive cost to being mindful and particular enough to break complex tasks down into numerous sub-tasks, and, without help, this kind of approach may be hard to learn and sustain.  Fortunately, this is just the kind of help we can give, especially to inexperienced students who may not be able to envision how a long-term task can be broken down, or even what all the steps involved might be.  By providing students with a framework of what to expect, and encouraging them to think realistically about what it will take to build each part of that framework, we can help them to stay on track, or at least in the general vicinity of the track, by using the segmentation effect.

Finally, another tool that has been suggested to combat the planning fallacy is the implementation intention, a term coined by Peter Gollwitzer for a particular model of thinking about future actions.  Encouraging people to think specifically about when, where, and how they will act towards their goal tends to make them more likely to move forward steadily, and in a timely way, towards them.  For example, people who received a telephone call in which someone asked them what time they planned to vote, from where they would be heading to the polling place, and what they would be doing just before they left to vote -- all questions designed to prompt them to think about when, where, and how they would vote -- were more likely to vote than those who did not receive the phone call.³  The mental IF-->THEN statement (as in, "If I am aiming to take a practice exam, then I should get a copy of an old exam from the library on Friday") is the implementation intention that moves people apace towards their goals.  This, too, is something that academic support professionals do, or can do.  By querying students about the specifics of how they expect to achieve their long-term goals, we can induce them to map out their plans in advance, changing vague ambitions about what they would like to achieve into articulable steps (the implementation intentions) that they can follow methodically to their desired ends within the time they have available.

It is a natural human tendency to overestimate what can be done in a given period of time. By helping our students account for this tendency, even if we cannot help them complete everything, we can at least help them get in a position where they've done enough to succeed. 

[Bill MacDonald]

¹Roger Buehler, Dale Griffin & Michael Ross (1995) It's About Time: Optimistic Predictions in Work and Love, European Review of Social Psychology, 6:1, 1-32, DOI: 10.1080/14792779343000112.

²Forsyth, D.K., Burt, C.D.B. Allocating time to future tasks: The effect of task segmentation on planning fallacy bias. Memory & Cognition 36, 791–798 (2008). https://doi.org/10.3758/MC.36.4.791

³Nickerson, D. W., & Rogers, T. (2010). Do You Have a Voting Plan?: Implementation Intentions, Voter Turnout, and Organic Plan Making. Psychological Science , 21 (2), 194-199.