Sunday, April 24, 2016
“Prepare to…No, I mean…. Ready about!” I shouted as I glanced up, around and behind me, then up again at the wind vane on the top of the mast. We were in a close reach, or close haul, or maybe a pinch.
“Ready!” My two crew mates grasped the jib sheets.
“Helms-a-lee!” I remembered that call properly and pulled the tiller left toward me, then corrected myself. We were turning to port, so I needed to push it to the right, I mean, to starboard, toward my instructor.
The mainsail swung across the cockpit in a short arc, the main sheet catching the boom. The jib luffed then fell as one crew mate eased off her sheet while the other hardened up as we passed through the wind.
I glanced up at the wind vane to stop the turn in a close reach, focused intently on the little arrow and its v-shaped indicators to tell me when I was out of irons and into my starboard tack. While my brain processed that little vane, it was not focused on the wind on my face or the kayaker or the sail boat or the piers, at least for a few seconds of forced decisions and information overload.
I was at the helm of a Catalina 22 in the middle of Marina Del Rey, thinking a lot about clinical pedagogy.
Our instructor sat across from me, kicked back against the stern pulpit, nonplussed, a salty-dog sailor, who was also a screenwriter with some work in IT (in LA, naturally), and with, as I would later learn, degrees from Yale and Harvard. He said, “Pick a landmark, keep it in the middle of the pulpit. Don’t steer too much. Your sail is luffing. Harden up. Okay, steer a little more than that. Keep on this line. Watch out for that boat. What tack are they on?”
“Um. Port? Port.”
“Right, so do we stand on or give way? “
“Um, we… Um, we, we stand on.”
“Right. Who’s next? Let’s rotate.”
So I shifted up to take a jib sheet while a class mate took the helm before we fell away to a beam reach, then to a broad reach, before we prepared to jibe, then actually jibed. She yelled, “Jibe ho!” which I had not gotten to do yet but which sounded cool. I relaxed my shoulders and saw everything I couldn’t notice while I was at the helm.
For my fortieth birthday, my wife got me sailing lessons, Basic Keelboat, the 101 course for the American Sailing Association at Bluewater Sailing. Since we had moved to our university overlooking the Santa Monica Bay three years ago, I had been pining for the sea, so she gave me a shot. For four days over two weekends, my crew of four and our instructor learned and practiced the basics. For a week, I had stress dreams about tying knots.
In the first week, I noticed that the terminology was my greatest distraction. Conceptually, I was getting it, but articulating all of these things quickly took the most mental focus. When we got underway, then started making way, after just an hour or so of basic orientation on shore, I was thrilled to be on the water. But when I was at the tiller, in a crowded marina, I had near-sighted tunnel vision on every task.
I had to focus on that wind vane constantly to reckon my point of sail, but I couldn’t do that while I was trying to remember to push the tiller in the opposite direction we needed to turn, while trying to remember whether to harden up or ease off the sail, to head up into the wind or to fall off, while all the time remembering the sailing words to use for all of those things. Our instructor made us narrate them every time, making us say what we were going to do before we did it, then to say it was we did it, then to do it all again. I sure hoped he or someone was paying attention to whatever we might hit, because I surely wasn’t.
He would have made a great clinical teacher, demanding but never worried we would collide with anything, even as he let us drift awfully close to disaster.
Prepare. Perform. Reflect. Prepare. Perform. Reflect.
We sailed in circles for the entire first day, through all the points of sail. Heading up from the broad reach to the beam reach to the close reach, coming about through the wind, into a close reach, falling off to a beam reach, to a broad reach, jibing away from the wind, then back again. Round and round and round, while all the other boats headed out to sea.
It reminded me of my first judicial hearing in real life, when a partner needed to tell me where to sit in the courtroom. How I was intently focused on the judge and my notes and how everything else dissolved into fuzzy notions of bailiffs, clerks, opponents, who were all there but who I couldn’t recognize while blood rushed through my ears. It reminded me of sitting in a law library in my firm, surrounded by books that I swore someone had once taught me to use when I was a 1L but that I now felt incapable of using like an expert.
It reminded me of a 3L who would ask me whether he has to cite the case he’s discussing in the memo. Yes, you always cite everything. Yes, cite it in a footnote. Yes, with the Bluebook. LRW was more than just sitting on the pier with a model. You have to take this thing out in the water and use it.
This is experiential learning.
The fourth and final day of the course, we sailed out into Santa Monica Bay with my crew, on a boat without a wind vane on the mast. We felt the wind. We could see it on the sails. We were in a port tack, and I needed to ease up that main sheet to keep our line on a broad reach. I knew how to sail that little Catalina 22 over six-foot swells and around that racing buoy and back again, because I had sailed in circles for days, chanting the turns and orders like a mantra. The final day, I didn’t have to dig deep to remember what to say. I just said it, and I knew what it meant because I could see where I wanted to go, could feel the wind on my face and could watch those sails react.
We could have talked all day about points of sail with a white board and a model, but we didn’t learn to sail on the ocean until we worked together under real sails in real wind on real water. We began confused, confounded and exposed in our novice ways, but by sailing we were becoming sailors.
The last day, I didn’t have tunnel vision. I saw all the other traffic on the water while our crew shared stories about our lives and work. We jibed all the way into the marina with the wind at our backs, calling out orders and turns while hardening up and easing off our sails, judging distance and angles, laughing and answering questions, giving and receiving advice. I was making plans to get my family out on the water as skipper of my own boat.
That reminded me of the student who was terrified to meet with a client alone for first time in a semester, who shrank from the weight of a client’s trust, who doesn’t trust herself to make a real-time decision, but who, just weeks later, is briefing her fourth client on the law with confidence in her own preparation. It reminded me of the student who is utterly stymied when he realizes his facts don’t come in a hypothetical and who can’t even identify the issue he’s supposed to spot, but who, ten weeks later, argues in court with a precise, prepared, creative presence of mind.
They were stumped by the jargon then stupefied by all of the information they needed to process as their instructor told them to sail in circles. After turning through the points of sail, over and over, reciting their lines, learning the wind, watching the sails, feeling the tiller, taking in more and more of the boat’s reaction in the water, the instructor finally said, “Come about and head to sea.” Then the horizon opens up, and the glittering water reflects a bright sky. The sails fill, and the boat cruises out of the harbor.
"To study the phenomena of law in society without books is to sail an uncharted sea, while to study the law without clients is not to go to sea at all." - Professor Charles Henderson Miller, founder of the University of Tennessee legal clinic in 1947.
Friday, March 4, 2016
I was walking out of our university cafeteria yesterday in my characteristically rushed state with an empty stomach, a couple of “To Go” boxes intended to last through midnight, and a 12:30 p.m. meeting with students just minutes away when a young man I did not recognize (an undergraduate student perhaps?) leaned across a poster and said something. My mind rapidly assessed my priorities as I noticed his highly corrective glasses, a discreet hearing aid, and a pronounced speech disability. The cascading moments came to a standstill, and I apologized. “Would you please promise to never use the ‘R-word’?” he repeated as he handed me a pen.
“Of course,” I said, as my hand tried to scribble a flourished signature across the top right-hand corner of the poster. The white space remained nameless. My pen was dry. As I borrowed another pen from a student sitting nearby, my eyes scanned the writing across the top of the poster: “Pledge to End the R-Word.” I wondered who this young man was, what his disability was, whether it mattered, and what would become of him and his pursuit of dignity and respect after the U.S. presidential election.
The Super Tuesday results were so definitive the night before that the leading candidates for both parties were announced well before bedtime. The night was restless. It was clear to all that the 2016 presidential election had become an interminable political version of the “The Jerry Springer Show,” but without a remote, volume control, mute function, or an on/off button.
Worse than the reality show nature of the election is the fact that support for the leading Republican candidate appears to increase with the frequency of comments and gestures and policies that are degrading to the disabled, women, minorities, and immigrants. Crowds applaud when he advocates for widespread discrimination against legally protected groups. They holler and cheer when he pours forth chest-thumping threats celebrating violence. And they laugh when he physically impersonates people, like the young man standing before me whose spine appears slightly bent, and his hands just a little curled. Yes, he is different, but not much. We all are—just a little bit different—but mostly the same.
The candidate also uses the “R-word.” Indeed, he uses a lot of words. “I know words. I know all the best words,” he has bragged with a bravado bred in fear and born from cowardice. “Is the R-word one of them?” I wonder.
And so I occasionally speak out, largely in my home or more often in my mind. Occasionally, there are hushed conversations, but mostly I am silently screaming. The first time I found myself silently screaming was the night of the Iowa caucuses. It was one of the busiest weeks of the semester, with client interviews running late into the evening. The clinic was humming and rushing with students and staff hurrying between our clients and our iPhones and computer screens watching the caucus results roll in.
As I walked into the student lab, I casually asked a student looking at the results on his computer screen, “Who are you voting for?” I immediately wanted to take my words back. Our teacher/student relationship gave me almost all of the power and privilege, and my job as an employee of a 501(c)(3) organization, especially while doing my job at my place of employment—8:00 p.m. or not—had brought me perilously close to an improper interaction.
I have been advising non-profits for nearly 20 years; teaching our students non-profit law in our Business Law Clinic for nearly ten. I knew the words nearly by heart: “[501(c)(3) organizations] may not participate in, or intervene in . . . any political campaign on behalf of (or in opposition to) any candidate for public office.” Part of the erasure I desired was that I did not want to say anything that would jeopardize my employment or the tax-exempt status of my university, but a larger part of my desire was that I did not want to abuse my relationship with a student—a relationship in which there is an inherent imbalance of power.
But it was the student’s response that fundamentally compelled my desire to unlive the moment. He proudly and cavalierly told me he was voting for the candidate who not only uses the R-word, but condones war crimes, torture, discrimination, and assault--someone who publicly observes that some women “look good on [their] knees.” And I want to scream. I knew that the candidate had a sizeable (and growing) following, but I assumed that they were comprised of “others”—not well educated, high performing students working on their doctorate degrees. Not my students.
As my mind raced with ideas about how I could justify “setting this student straight” due to the unique role of law professors in educating our students (and our larger communities) about Constitutional rights, humanitarian law, justice, human rights, and so much more, I said nothing.
I wonder whether in trying to protect my job, I will fail to do my job. Yet, my voice remains silent and my pen is dry.
Well, at least from 9-to-5, and occasionally, from 9-to-8.
Wednesday, February 17, 2016
West Academic has announced the publication of Learning from Practice: A Text for Experiential Legal Education, 3d ed. The editors are Leah Wortham of Catholic, Alexander Scherr of Georgia, Nancy Maurer or Albany, and Susan L. Brooks of Drexel.
From the publisher’s description:
The third edition of Learning From Practice covers topics relevant to law students working in real practice settings, including externships, in-house clinics, and other experiential courses. Intended for use in course seminars and tutorials, each chapter helps students succeed in their work, reflect on their development, and plan for their lives as lawyers. The book starts with topics common to all real world experience: planning to meet goals, working under supervision, observing carefully, communicating effectively, understanding bias and cultural difference, and reflection. The book offers detailed coverage of ethical issues in experiential coursework including a new chapter on professionalism. A group of chapters address key lawyering abilities such as good judgment, client relationships, collaboration, writing for practice, and making presentations. This edition expands coverage of important practice areas including judicial, criminal justice, public interest, public service, and transactional practices. The closing chapters turn to the future and focus on developing professional identity, maintaining well-being, finding a job and career, and the future of the profession. Throughout, the book encourages students toward self-direction, reflection, dialogue and collaboration, critical assessment of law practice, and well-being and career satisfaction.
In true collaborative, clinical style, there are thirty-four authors, including three contributors to this blog, Inga Laurent, Alex Scherr, and me. The first edition of this book was very important and useful to me when I was a rookie teacher, and it’s an honor to contribute to this latest, innovative edition.
Wednesday, February 3, 2016
As clinicians we know that our students do amazing work. A lot of what we associate as clinical work falls into the client-case-court realm, but clinicians like Prof. Fran Quigley at Indiana University Robert H. McKinney's Health and Human Rights Clinic have expanded that work into the larger forum of policy advocacy, and with some amazing results.
Starting in Fall 2015, Prof. Quigley's students identified legal barriers faced by their clients, researched those issues, and then took it a step further by creating comprehensive manuals that, according to Prof. Quigley "...outline the scope of Indiana’s problem [regarding drivers license suspension fees], explain how it relates to the national landscape, and make thoughtful recommendations for how lawmakers can solve it."
Prof. Quigley's work is another inspiring reminder that we have many options as clinicians to engage our students in multiple types of advocacy, making our impact even greater for our communities as a whole. To read more about this process and access the students' report, click on the link below.
Thursday, January 28, 2016
With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue. This is a variation on a theme I've addressed previously on this blog.
In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)
TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.
Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.
TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)
The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.
Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:
“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to
(1) persons of limited means . . . ;
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.
Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.
The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.
Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.
Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.
TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.
Tuesday, December 15, 2015
With a memo to deans and other interested people on December 11, the ABA is seeking notice and comment to significant revisions of Standards 304 and 305. These would move the standards governing field placements from 305 to 304 which governs clinics and simulation courses.
The memo describes these proposed revision:
In moving field placements to Standard 304, requirements are added that are commensurate with those required for clinics and simulation courses—a means of guided reflection; opportunities for performance, feedback, and self-evaluation; and direct supervision. The new Standard also defines a field placement course as one that provides substantial lawyering experience and calls for the creation of a written understanding for the experience. It also imports components from Standard 305 such as the requirement for appropriate prerequisites or sufficient training, and the need for credit granted to be commensurate with the time and effort required. The revision removes any distinctions in the requirements for these programs based on credits offered, and mandates that records should be maintained for all placements. The revision also requires that law schools maintain sufficient control of the student experience at the field placement site to ensure that the requirements of the Standard are met.
Most significantly, "this proposal eliminates current Interpretation 305-2 (“A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation.”) and does not include a similar prohibition in revised Standard 304."
Instructions for submitting comments are in the memo here: Notice and Comment - December 11 2015.
Monday, November 30, 2015
Of the many other reasons clinical legal education is a dream job, the ability to get to know our students in a real way is my favorite. It occurred to me this Thanksgiving that I’ve been taking in students every year for the holiday and it is wonderful.
Thanksgiving is a tough holiday for law students because they are often too far from home to afford to go back. And, even when they can afford it, the short period of time and the proximity to exams means it often isn’t worth it. Even when students choose not to go home for the holidays, they’re often still blue from missing their families. I’ve been taking students in for Thanksgiving since all the way back when I was a student myself.
The tradition began accidentally. When I was a 2L, I was one of four Indian students at the school (which felt like a regular pow-wow compared to my 1L year where I was the only tribal member). Of the four of us, I was the only one who permanently resided near the school. The others lived on or near their tribal land. One student couldn’t get herself back to the Navajo Nation for the holiday, so I told her she could join us. It was one of the best decisions I made in law school. She’s been with us every Thanksgiving since, except for the one year when she foolishly tried to impress the parents of her new partner by cooking for them. She’s become an auntie to my kids and a true friend.
Since that worked out so well I made it a point to invite students who had nowhere to go every year after that, and I continued that tradition once I became a professor. This tradition has become an invaluable way to get to better know and understand my students. They let their hair down a bit, relax, and talk about life outside of their law school pursuits. It’s terrific to learn about what they’d be doing with their families if they’d been able to go home with them. It’s endearing to hear them on the phone wishing their families a happy holiday, or to hear them comforting a sibling who misses them. It’s great to be reminded to see them as people—not just students.
It’s also rewarding to let them get to see me as a person, too. The aura of the professor dissipates for them a little. They watch me interact with my family, cuss at the football game on the TV, and scramble to get the meal out of the oven and on the table without burning it (which I most certainly did not do!). It’s nice to be able to show them that they have a family away from home should they need it. It’s nice to have even more people to be thankful for.
Tuesday, November 3, 2015
Via TaxProf Blog, here is critical work from Prof. Lucy Jewel of Tennessee, calling for the collapse of the doctrine/skills dichotomy and its resulting hierarchies, in her article, Oil and Water: How Legal Education's Doctrine and Skills Divide Reproduces Toxic Hierarchies, 31 Colum. J. Gender & L. 111 (2015):
An excerpt from the abstract:
[T]he antipodal positioning of doctrine and theory over skills and practice harms law schools’ ability to prepare a new generation of law students to engage in both critical lawyering and law reform. As American society becomes increasingly unequal and as its criminal justice system barrels well past the breaking point, we desperately need the next generation of law students to participate in a new era of structural law reform. But unlike the last major era of reform in the United States (the Progressive Era), where ill-conceived top-down solutions were theorized and implemented by a small subset of elite lawyers, this time, reform should emerge from a coalition of lawyers hailing from all law schools and all levels of society. Even in legal education’s current situation, with tenure for law professors on the chopping block due to declining student enrollment and legal employment prospects, law schools should commit to collapsing the false binary between doctrine and skills.
Sunday, September 27, 2015
In our work with clients and students, there are many moments that make an indelible impression on us, as attorneys and counselors, as teachers, as human beings. Usually, when these moments occur, I am overwhelmed with both the honor it is to do the work we do, and the gravity of that work, on behalf of our clients and our students.
For those of us working in a clinic that provides direct representation to clients, we are working with people who are facing challenges that to them, seem insurmountable, and often involve traumatic events, victimization, and marginalization. The liberty and happiness many of us take for granted are habitually at risk for such clients, and the impact of our work can be monumental to them, their families, and ultimately as a result, their communities.
Some of the work the Puller Clinic does is with victims of military sexual trauma (MST), for both veterans and active duty service members. The former are typically seeking disability compensation and health benefits, the latter are often facing an unwanted and typically unwarranted separation based on symptomology resulting from the MST. There are more of these cases than one would expect, and it is heartbreaking to not only learn the details of the underlying assault and the herculean efforts at overcoming that trauma, but also the re-victimization during continued service or the compensation and separation processes. Not surprisingly, the MST can cause paranoia, fear, guilt, hopelessness and deep-seated distrust as a result of an attack by a brother- or sister-in-arms. In discussing an MST with a client who previously served as a paratrooper and asking the requisite question of whether she reported it to anyone else, she responded, “No, they packed my chute.” That was one of those moments that made an indelible impression on me as an attorney – when those who have “got your six,” or are supposed to, are the same ones who engaged in or were complicit during or after the commission of an MST, how does one come back from that deep betrayal without long-term emotional and psychological consequences?
A student and I recently interviewed a victim of continued harassment, bullying and MST that occurred during service. This repeated victimization has left her, by her own admission, paranoid, devoid of any trust, struggling to get through each day, and desperate for some assistance. After she recounted her experiences over the course of several hours she thanked us and said she felt a lot better already. She said she had felt hopeless with nowhere to turn, but that we “are part of the light.” It is a humbling and sobering experience to play that role in someone’s life, but it also left me feeling so grateful that in addition to training the next generation of lawyers, clinicians still get to be “part of the light” for clients every day. We have the best job ever – we get to teach, but we also get to continue to serve.
Finally, at this point in the semester, it may feel overwhelming with classes, cases, and the myriad of other responsibilities we each have at our institutions and beyond, but I leave you with this reminder from the movie, Zero Dark Thirty, about the efforts of the CIA to capture Osama bin Laden. As the CIA analyst played by Jessica Chastain notes, “I want to make something absolutely clear. If you thought there was some secret cell somewhere working al-Qaeda, I want you to know that you are wrong! This is it. There's no working group coming to the rescue. There's nobody else hidden away on some other floor.” The work we do with our students is important, as is the lesson they should leave with; we do what we do because for the clients we represent, and the thousands of others we wish we could, “there is no one else.” So take care of yourselves as best you can, because your students and your clients need you.
Monday, September 21, 2015
What can a surgeon teach attorneys about how to lawyer? In his recent best seller Being Mortal: Medicine and What Matters in the End, Dr. Atul Gawande reflected on different models of physician-patient relationships as he struggled to counsel his own father. In anticipation of Gawande’s appearance in the Twin Cities last week, I had listened to the audiobook version on my daily bike commute.
[The sold-out event focused on living as well as we can until the end. More than a book reading, the event was a party of sorts, replete with buffet options as well as the Larry McDonough Jazz Band. In my last blog, I featured a legal advocate/jazz musician and Larry’s appearance allows another jazz law digression. Larry, beyond his Dave Brubeck-esque talent at the keyboard, has been a legal aid attorney and an adjunct professor teaching poverty law at University of St. Thomas and the University of Minnesota. His current day gig is as pro bono coordinator at Dorsey and Whitney. ]
Gawande’s story telling style intersperses research and observations with patient and family stories, including the hard conversation he had with his physician doctor who faced progressive paralysis from a rare spinal cord tumor. Gawande’s dad had two surgeons from which to choose. His dad rejected the first: “[The surgeon] had the air of the renowned professor he was – authoritative, self-certain, and busy with things to do.” [p. 197]. On the other hand,
The Cleveland Clinic neurosurgeon, Edward Benzel, exuded no less confidence. But he recognized that my father’s questions came from fear. So he took time to answer them, even the annoying ones. Along the way, he probed my father, too. He said that it sounded like he was more worried about what the operation might do to him than what the tumor would. . . . Benzel had a way of looking at people that let them know he was really looking at them. He turned his seat away from the computer and planted himself directly in front of them. . . . Eventually he steered the conversation back to the central issue. The tumor was worrisome. But now he understood something about my father’s concerns. He believed my father had time to wait and see how quickly his symptoms changed. He could hold off on surgery until he felt he needed it. [p. 198].
Benzel’s bedside manner brought to Gawande’s mind an article he’d read in medical school in the 1990s by Ezekiel and Linda Emanuel, the Four Models of the Physician-Patient Relationship. The four types are nicely abridged in a Cliff Notes chart fashion here. Gawande summarizes them as follows:
- Paternalistic (“Guardian”): “[W]e are medical authorities aiming to ensure that patients receive what we believe best for them.” [p. 200]
- Informative (“Technical Expert”): “It’s the opposite of the paternalistic relationship. We tell you the facts and figures. The rest is up to you.” [p. 200]
- Interpretive (“Counselor”): “Here the doctor’s role is to help patients determine what they want.” [p. 201].
- Deliberative (“Friend or teacher”): “Doctors sometimes have to go farther than just interpreting people’s wishes in order to serve their needs adequately. Wants are fickle. And everyone has what philosophers call ‘second order desires’ – desires about our desires. We may wish, for instance, to be less impulsive, more healthy, less controlled by primitive desires like fear or hunger, more faithful to larger goals. . . . We often appreciate clinicians who push us when we make short sighted choices. . . . At some point, therefore, it become not only right but also necessary for a doctor to deliberate with people on their larger goals, to even challenge them to re-think ill-considered priorities and beliefs.” [p. 202]
These models of course bring to mind similar constructs in the legal world: Lawyer-centered (i.e. paternalistic), Client-centered (i.e. informative/interpretive), and Collaborative (broadly speaking, deliberative). G. Nicholas Herman and Jean Carey provide succinct summaries of the lawyering models in A Practical Approach to Client Interviewing, Counseling, and Decision-Making (2009) [pp. 5-11].
Gawande clearly sees the deliberative approach is the gold standard for practice. But I can think of client situations in the past year in which all four of the models were utilized defensibly. For instance, in a situation in which a young client in the midst of family conflict expressed a desire to be deported into near certain death rather than to continue with an asylum claim, we employed an old fashioned paternalistic model until the crisis passed, going so far as to have a child advocate (in essence, a guardian ad litem) appointed. In a very different situation, we use the deliberative friend model with a client we’ve served for years (and whose story I’ve blogged about here). She’s even been the teacher by coming to my class.
Are these models more like outfits or different kinds of surgical garb – each perhaps to be “worn” depending on the situation? Which style/model fits you most comfortably?
Friday, September 4, 2015
We are on week six of a bathroom remodel that has all six in our household sharing a half-bath...while potty-training our two year old. Currently, there is no end in sight.
I know. First world problems. But still quite tiring.
The hold up is the tile. We are renovating a 1930’s bathroom, down to the studs, and building it back up again to look just like it did in the first place...minus the cracked tile, the toilet that runs all day, and the caking grout.
As it turns out, the jadeite green tile is pretty hard to find. It’s not as popular as it once was and after scouring home renovation blogs for months, I was able to find two places that still sell it after all these years: the local company that makes it, and the other company that buys it from the local company and sells it for twice as much online. It seemed so perfect! It was a home renovation miracle. How fantastic to find that I live within 30 miles of the source. Except that it hasn’t been fantastic.
What I’ve learned, is that making tile does not work like clockwork. Now on our fifth delay, we are still waiting for the last few boxes of green tile so that our (very patient) contractor can get started on this final phase. What I have also learned is that if you are the only source of said tile, you have no reason to hurry, or make things better, or apologize, or accommodate your customer’s suggested discount. You are not particularly worried about a bad Yelp review.
Where else is your customer going to go?
The answer is nowhere.
As I was driving home from work last week, mulling over this frustrating situation, it occurred to me that it is not the inconvenience of being down to one bathroom that has been bothering me. The deeper issue is that I am not used to being without recourse.
Now that seemed worthy of reflection.
I am not accustomed to being powerless. If you inconvenience me, I can usually find a way to remedy the situation. And if not, I can find a subtle way to make you pay. Or apologize. Or wish you had acted differently. I’m a lawyer, after all. Now, I’m not a mean person, so usually I do so with a pleasant disposition, but we both leave knowing who’s boss. I’m not necessarily proud of this, but I don’t think I’m alone, particularly within our profession.
Over the past several years I have been increasingly interested in the connections between spiritual and professional formation. Spiritual formation includes the well-known practices of prayer and meditation, fasting, and the like, but there are also small, seemingly insignificant practices that help us to address larger issues in our lives. For example, in order to address impatience, one might seek out the longest line in the grocery store or choose to drive in the slow lane on the freeway. These practices help one to be more mindful of one’s shortcomings and seek out opportunities to practice the more virtuous response.
I think of them as little “catches’ to keep us from living life on auto-pilot.
This idea has lead me to think in new ways about my own professional formation. Just as I am asking my students to be intentional about who they are becoming in the legal profession, I want to be careful to ask the same of myself. I don’t know that I’m inspired enough to go seeking out inconvenience or powerlessness. I certainly will be taking a break before we remodel any other room in our house. But I do think there is value in leaning into these experiences as they arise and acknowledging them as professionally formative opportunities.
As I’ve reframed my own experience in this way, I’ve been surprised by the way that it has refreshed and awakened my empathy for my clients. Though I am fully aware that our struggles are in no way the same, I have found myself more attuned to their feelings of powerlessness and more patient with the ways that they respond to their particular stressors. Over the past few weeks, I’ve found myself asking different kinds of questions and communicating in new, hope-infused ways. As I enter my twelfth year of teaching in my legal aid clinic, this kind of recharged empathy is a gift.
Not a bad tradeoff for a box of green tile.
Friday, August 28, 2015
Alex Scherr’s thoughtful piece this week on what an externship should be struck home for me, and in an internal way. I can’t wait for Part II. As a clinician I am really proud of what I do. We all are, or we wouldn’t keep at it. But I also face an internal struggle at times, a struggle of how to advocate for and expand experiential learning through law clinics and/or externships, whatever they may be.
I am a traditional clinician, for the most part. By this I mean that I teach in and direct a live-client clinic where I enroll up to eight to twelve students a semester and supervise them on cases. That’s a pretty standard way of doing it. While that may be the case, I also value my creativity to tinker with that established model, mainly so that I can do more subject-wise, project-wise, and expand the number of students in my clinic. My tinkering has involved, for example, out-sourcing some supervision when appropriate by volunteer supervising attorneys or community partner attorneys, and relying more on technology projects (instead of cases) for the development of pro se resource projects and developing student learning.
My overall goal is simple – I want to expand the number and type of experiential learning opportunities so that as many students as is practical get a valuable and meaningful experience. The ABA implicitly with the new requirement for six hours of experiential learning feels the same. My struggle is this – how do I as a clinician advocate for that expansion? Is it only through the development of law school clinics, or can I also advocate for externships? By advocating for externships am I turning my back on law clinics? By only advocating for traditional law clinics, am I turning my back on viable and meaningful externship opportunities for law students? How do we handle situations when there are really great externships that exist – especially when they seem to duplicate some of the clinical work that we do? Do we keep doing that work? Are we worried that students might choose the externships over us because of the different ABA standards and the expectations involved? What can we do when externship-type offerings are being relied on as cheaper equivalent alternatives to what we do?
I know that there are substantive differences between clinics and externships, not only in how we teach and manage them but also because of what the ABA requires. Yet as a group, how do we handle this as clinicians? What do you personally do? Does anyone else face the same struggle?
Tuesday, August 18, 2015
Thank you to Prof. Jayesh Rathod, 2015 Chair, AALS Section on Clinical Legal Education, and the executive committee for good work on this statement and these defining issues.
Here is the statement in full:
AALS Section on Clinical Legal Education
Statement of Position Regarding the State Bar of California Task Force on Admissions Regulation Reform (TFARR) Experiential Education Requirement
The Association of American Law Schools Section on Clinical Legal Education (“AALS Clinical Section”) applauds the Trustees of the State Bar of California for unanimously adopting the proposal of the Task Force on Admissions Regulation Reform (“TFARR”) to require applicants to have completed 15 credits of experiential education prior to sitting for the California Bar. The AALS Clinical Section is made up of hundreds of legal educators, including many in California who have dedicated their professional lives to preparing students for the practice of law through in-house clinics, externships, and other experiential educationalofferings. In recent years, we collectively and individually have been involved in efforts to ensure that our JD students are more ready for practice, consistent with calls for such training made by bar associations, alumni, prospective students, and fellow educators. Many of us have participated actively in state bar associations and on bar committees, allowing us to appreciate the goals of both the legal academy and state regulators. With these experiences and perspectives in mind, we believe that the TFARR proposal, which encourages the integration of 21st century lawyering skills into the core of legal education, presents a significant opportunity to better prepare students to meet the demands of clients upon admission to the bar.
As the Clinical Legal Education Association (CLEA) and other stakeholders have noted, the legal profession has lagged far behind every other profession in regards to required pre-licensing professional skills education. Numerous studies over the past four decades by the American Bar Association (ABA) and others have decried this lack of practical training and called for reforms to the required law school curriculum.1 As a result of these reports, the ABA recently increased the number of credits of experiential education required of JD students from 1 to 6 credits.2 While this represents a significant increase for law students, it corresponds to less than 8% of the JD program. It is also 4 times less than the practical training required of social workers and nurses and more than 6 times less than the practical training required of physicians.3
A. The Proposal Reflects an Increased Demand for Experiential Opportunities
Law students also have been clamoring for more experiential education opportunities. The greatest evidence of this demand is the criteria students rely upon when choosing a law school. These choices have become ever more important for law schools facing declining application numbers. A Law School Admission Council study in 2013 found that clinics/internships were among the most influential factors for prospective students in deciding whether to enroll at a given law school, behind only location and employment of graduates (77% of respondents considered location to be a very important factor and 68% classified clinics/internships as very important).4 In fact, experiential offerings were more important to these prospective students than the cost of the institution, the personal attention they would receive, a school’s ranking, and the reputation of faculty. In addition, a survey conducted in 2004 of recent law school graduates found that opportunities for professional skills training (including clinical courses and legal employment) were rated as the most helpful law school experiences in successfully transitioning to practice.5 Surveys conducted by the National Association for Law Placement in 2010 and 2011 likewise found that lawyers in the private, government, and non-profit sectors attached great value to their law school clinic experiences.6 Thus, from the viewpoints of prospective law students, recent graduates, and more senior lawyers, practical training is vital.
B. The Proposal Permits Great Flexibility and Aligns with the ABA Rules
We are aware that TFARR took these factors into account and that it crafted and revised the final proposal over several years during which it worked closely with California law schools, practitioners, and the judiciary, and engaged in extensive information gathering, including numerous opportunities for public comment. The result is a proposal that gives law schools guidance on developing and evaluating experiential learning offerings while simultaneously giving schools flexibility to design these offerings in ways that suit particular institutional missions, student bodies, and relevant legal markets. First and foremost, the proposed California bar rules provide a “safe harbor” for courses that comply with the revised ABA standard, thus allowing ABA-accredited schools to offer programs that simultaneously satisfy both requirements. Under both sets of rules, virtually any topic taught in a real-client or simulated setting will satisfy the ABA and the California Bar, including interdisciplinary courses developed in collaboration with other professional schools. Skills learned can be as diverse as law practice management, client counseling, practical writing (including transactional writing), and pre-trial preparation.
In addition, under the California rules, the settings in which these skills can be learned include traditional courses, clinics and externships, uncredited clerkships, and apprenticeships. The proposal even allows for portions of a course to count, such that a 3-credit course that uses a contract-drafting exercise for 1/3 of the class time could count the 1-credit module towards the 15-credit requirement. Moreover, in a nod to schools experimenting with their first-year curricula, all but the first 4 units of first-year legal research/writing courses can count towards the 15 credits if they are taught through real or simulated client work. Finally, summer work that is uncredited is specifically allowed to count for up to 6 of the 15 required units. Thus, there are virtually limitless permutations of course, field, and uncredited work that law schools can offer to their students in order to meet both the ABA and California rules.
Moreover, the emphasis on skills (as opposed to substantive practice areas) provides schools the ability to tailor offerings to the local marketplace (e.g., oil and gas offerings in Texas or maritime law offerings at coastal schools). The result is that virtually any legal experience a student gains, whether in a law and policy reform organization or at the U.S. Patent and Trademark Office, can potentially count towards the 15-credit requirement. This provides a great deal of room for innovation, allowing institutions to experiment with the delivery of skills and professional training and draw upon generally under-utilized resources such as alumni.
As with any new undertaking, there will be a period of adjustment as schools begin to grapple with both the new ABA requirements as well as state requirements like those proposed by TFARR. TFARR has wisely taken this adjustment period into account by offering exemptions for licensed attorneys from other jurisdictions and allowing post-graduate apprenticeships (which can be paid) to meet the 15-credit requirement. This will ensure that schools have plenty of time to audit and/or ramp up their offerings, that lawyers who had not planned to practice in California still have access to that state’s bar, and that students have every opportunity to learn about and meet the requirements prior to their first bar admission.
Overall, the TFARR proposal presents a significant opportunity to improve the overall competency of new admittees to the State Bar of California. As students enter a rapidly changing and expanding legal marketplace, it is incumbent upon the Bar to ensure that law graduates have the doctrinal knowledge and professional and interpersonal skills needed to effectively and ethically represent clients in California. The TFARR proposal would advance this important obligation of the Bar and help legal education fulfill the demands of our students, their future clients, and the legal profession.
*. Disclaimer in accordance with AALS Executive Committee Regulation 1.4: The opinions expressed here are not necessarily those of each member of the Section and do not necessarily represent the position of the Association of American Law Schools. ^
1. The ABA’s 1979 Report and Recommendation of the Task Force on Lawyer Competency: The Role of the Law Schools (“the Crampton Report”) proposed that law school curricula pay more attention to providing professional experiences. The ABA’s 1983 Task Force on Professional Competence shared this perspective and recommended that the ABA make enhanced law school training in lawyering skills a top priority. A decade later, the 1992 ABA Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (“the MacCrate Report”) recommended that law schools “develop or expand instruction” in fundamental lawyering skills and professional values; and the most recent, the ABA Task Force on the Future of Legal Education Report and Recommendation reiterated the “calls for more attention to skills training, experiential learning, and the development of practicerelated competencies” and noted that the “balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further towards [the latter].” In addition, the Carnegie Foundation for the Advancement of Teaching publication, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007), found that courses that included real-life experience with lawyering could teach students all of the relevant professional competencies: intellectual, practical, and formation of professional identity and judgment. ^
2. ABA Standard 303(a)(3). ^
3. Robert R. Kuehn, Pricing Clinical Legal Education, 92 DENVER L. REV. 1, Appendix A (2015) (citing MOLLY COOKE ET AL., EDUCATING PHYSICIANS: A CALL FOR REFORM OF MEDICAL SCHOOL AND RESIDENCY (2010); and COUNCIL ON SOCIAL WORK EDUC., EDUCATIONAL POLICY AND ACCREDITATION STANDARDS, at Educ. Policy 2.3., Accreditation Std. 2.1.3 (2012)). ^
4. The survey ranked factors based on the percentage of respondents who rated each factor as “4” or “5” on a 5-point scale, with “3” as “somewhat important” and “5” as “extremely important.” See Law School Admission Council, LSAC REPORT, May 2013, at 12. ^
5. NALP FOUNDATION FOR LAW CAREER RESEARCH AND EDUCATION & AMERICAN BAR FOUNDATION, AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 81 (2004). ^
6. NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2010 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS 6 (2011); NATIONAL ASSOCIATION FOR LAW PLACEMENT & THE NALP FOUNDATION, 2011 SURVEY OF LAW SCHOOL EXPERIENTIAL LEARNING OPPORTUNITIES AND BENEFITS: RESPONSES FROM GOVERNMENT AND NONPROFIT LAWYERS 7 (2012). ^
Monday, August 17, 2015
Early in my teaching career I had the honor of welcoming our first-year students throughout a one-week orientation, and on the last morning, I was directed to “inspire them.” It was a task that proved as daunting to me as it was rewarding, and in preparing for the start of another academic year, it serves as the inspiration for my post today.
To the new law students and those of us privileged to guide their journey, I offer these thoughts as a welcome to the legal profession. First and foremost, remember that being a lawyer is an immense responsibility. Never forget that people trust you with their lives and their livelihoods when they choose you as their lawyer. They deserve the best that you can give them – as a lawyer and as a person. How you treat your clients has a rippling effect on the people they know, their communities, and the judicial system.
Who do you want to be as a lawyer? . . . That is the most critical question as you embark on this career. As you consider that question, I want to share with you a story about a lawyer who graduated from William & Mary, one who laughed that he was an important part of the law school because he was part of the foundation holding up the top three-fourths of his class. Despite his less than stellar GPA, he went on to develop a very successful law practice, using his amazing legal mind. More important than that, though, was the effect he had on clients’ lives, not just their cases.
For instance, a client of his wrote, “He was a special person. He seemed concerned about his client’s health and well-being, along with their legal cases.” Another client wrote, “He had a tremendous heart and always had the time for us whenever we needed it, despite his busy schedule.” A third client noted that “He guided me through many complex legal issues over the past four years – he was a great attorney and an occasional sushi lunch buddy.” Clients spoke of him being a “truly a kind and caring man.”
Through kindness and respect for others and the profession, he was well regarded by other attorneys too. One wrote, “I have had cases against him over the past few years and have always thoroughly enjoyed his company. The legal community has lost a hard worker and a kind gentleman.” Another wrote, “He was a great, honest and good man. He was kind to others, and compassionate in how he approached the practice of law. In short, he was a gentleman.” Another opponent noted that he “always enjoyed having cases against him. He was well respected, a hard worker and a joy to be around. He will be missed in the legal community.” One attorney noted that he “never knew him, but the lawyers here in our office who had cases with him always volunteered that he was one of the good guys.”
Lastly, a William & Mary faculty member and fellow member of the Bar explained that she “frequently receives inquiries from people who need an attorney, but have no money to pay one. In such circumstances, I have again, and again, and again, contacted him and asked him to help. He has never said “no.” When people ask me what kind of law he practices, I say “free law” because he is so generous with his services.”
A young student who externed with him noted, “I look to him as my role model. He is not only the type of lawyer I want to be, he is the type of person I want to be. If I achieve that, in my mind I will be successful.”
It starts now, as you begin law school – what kind of lawyer do you want to be?
As you embark on this profession, you will be entrusted with the keys to the judiciary. With that privilege, you are making a commitment to the highest standards of professional behavior, behavior that includes self-enforcement and required competence. Once you make this commitment to higher standards of behavior – the likelihood of getting caught when you break the rules is 100%, because you will always know if your actions violate the tenets of our profession. Life as a lawyer breaching these standards will be empty and unrewarding. Law is an honorable profession, one that you should be grateful to become a part of and proud to maintain as honorable.
Challenge yourself to make this career about more than a quest for things material; such a quest will prove empty and unrewarding. Entering this profession brings with it the responsibility to help those who cannot help themselves through the complexity of the judicial system. Our country is filled with an overwhelming number of people who need your skills and your passion just to preserve the life, liberty and happiness that the rest of us often take for granted. There is a devastating need for legal services in this country; I hope you will not leave the cry for justice from the most vulnerable among us unanswered.
Don’t forget why you came to law school. Write down those reasons today as you embark on this journey, and look to them often during law school. If you remember those reasons each morning, this will be a career that sustains your spirit. Welcome to this honorable profession; we need you.
 The lawyer was Ken Roberts, William & Mary Class of 1990, my late husband, who died suddenly after turning 41. He was the kindest, most compassionate and generous lawyer I have ever known. He inspired me during his life, and he continues to do so today, as an attorney who regularly made a difference in the lives of others.
Wednesday, August 12, 2015
I wrote previously about Pepperdine’s proactive approach to these rules. Our faculty has adopted these standards as graduation requirements beginning with the Class of 2017, in advance of the rules' formal enactment, to ensure that our students and our school are prepared and to accomplish these objectives well and eagerly. We are actively building capacity in our program of clinical education, adding clinics, creating practicums, developing new experiential opportunities across every law school center, examining our curriculum, and building a flexible, compliant program to generate pro bono opportunities for students. The new rules have given us great incentive to innovate and adapt, with a renewed focus on professional formation, and to live into our own mission.
I spoke on a panel last year at Pepperdine’s Judicial Clerkship Institute with my dean, Deanell Tacha, who served on TFARR, Chief Judge Jonathan Lippman of New York who has led the way on these reforms, and Justice Jon Streeter, formerly president of the California Bar and chair of TFARR. We discussed the experiences students should seek and receive to prepare for elite practices and judicial clerkships, and the judges agreed with the dean and the clinical law professor that students need more courses and experiences that will generate wisdom, creativity, humility, integrity, diligence and excellence, within a pervasive understanding of lawyers' roles and obligations to society. Justice Streeter expressed confidence and optimism that the rules will be adopted.
Tuesday, July 14, 2015
I am a bit of a Veruca Salt when it comes to certain things, including books, especially ones that promise to be transformative--“I want it and I want it now, Daddy!” And so last December, I demurely offered to copy edit Building on Best Practices: Transforming Legal Education in a Changing World before it went to the publisher. This was no sacrificial duty on my part. I had the opportunity to read a couple of the chapters in draft form earlier in the year and I was impatiently hungry for more—a lot more, and now! The pedagogical feast did not disappoint.
The editors describe the goals of Building on Best Practices as a “[R]eflection on the best of current and emerging practices in legal education that will guide individual teachers and law school administrations in designing a program of legal education that meets the needs of the lawyers of tomorrow. Today's law students will enter a profession vastly different from the one their predecessors experienced, for which different skills, knowledge and values are necessary. This book is an attempt to synthesize important developments in legal education that have occurred since the publication of Best Practices for Legal Education. It is designed as a resource for anyone who hopes to contribute to the betterment of legal education and wishes to explore positive opportunities for change.”
As promised, the book builds on Best Practices in Legal Education, which was written by Roy Stuckey et al. and published by CLEA in 2007. Building on Best Practices takes into consideration the crisis in legal education, advances in technology, the diversification of students in U.S. law schools, changes in the profession, new accreditation standards, the further development of educational research into how we learn, and much, much more.
Coincidentally, I was reading the book while attending the 2015 AALS Annual Meeting, and as I moved from the sessions and discussions at the Annual Meeting back into the pages of the book, I was struck by the level of synchronicity between the concerns raised by our colleagues at the meeting and the insights and guidance provided by Building on Best Practices. The book is both timely and relevant at a time when legal educators need help—badly. Legal education is at least in flux, and possibly, in crisis, and it is crucial that we recognize our challenges and collaboratively identify and implement solutions to help us move forward into a new stage in history.
That collaboration is evident from cover to cover in Building on Best Practices. Edited by Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas, and Antoinette Sedillo Lopez (eds.), it includes contributions from more than 50 legal educators from law schools across the country. The publisher, LexisNexis, is making the $50 print book available to every legal educator in the U.S. at no cost and has already made the ebook version available (also at no charge).
Here's the link to the ebook, in case you, like me, just can’t wait to devour more: http://www.lexisnexis.com/store/search/search-results.jsp?_requestid=31396\.
Thursday, July 9, 2015
It’s July. Let’s talk about vacation. More specifically, have you booked yours?
I’d like to invite us to consider vacation as a matter of professionalism. Vacation as duty to ourselves, to our clients, to our students and the profession. A bit too far-reaching? I actually don’t think so.
I’ve spent the better part of the past two years researching, thinking, talking and writing about well-being, self-care and work-life balance. The way I see it, we are a part of a profession with a longstanding tradition of workaholism and compromised mental health, one that leads other industries in depression, alcoholism, substance abuse and career dissatisfaction. Unfortunately, we are doing far to little to turn the ship. It seems that it's a ship that we would want to turn for our own sakes, of course. However, the task seems all the more important for us as clinical professors, given that we spend our days teaching and mentoring the next generation of lawyers.
The causes and remedies to these problems are by no means uncomplicated, but one central theme continues to surface in these kinds of conversations: the need for self-care. Taking care of ourselves can feel selfish or privileged, especially as we serve clients and communities who cannot imagine such luxuries as paid vacation time or holiday travel. However, thanks to work being done in other people-centered fields like social work, I have become convinced that the best gift I can give my clients and the community that I serve is for me to be alert and energetic, thoughtful and ready to take on the day's work. For me, failure to recharge and step away from the difficulties of my practice results in a burnout that dances dangerously on the border of malpractice. And I don't think I'm alone. We're finding that, for both individuals and for companies, failing to recharge "simply isn't sustainable." And according to a recent study cited in the Harvard Business Review, it is those who take vacations that are more likely to be promoted.
Which brings us to summer: the perfect time to take stock of our work-life rhythms and to hit the reset button on our self-care. Studies show that we typically leave over a week of paid vacation unused. In fact, advertisers have begun to realize that few Americans are convinced to take time away for their own sakes, and have begun to use the “kid angle.” Last summer’s Mastercard "One More Day" campaign featured children citing the benefits of even just one more day of vacation per year. The ad featured kids reacting to the fact that over 400 million paid vacation days go unused each year. This year, homeaway.com partnered with internet sensation “Kid President” to promote the idea of a "whole vacation." Clever as always, Kid President contrasts a whole vacation with it’s common competitors: “vague-cations” and “fake-cations,” insisting that parents must unplug from work and other responsibilities and fully engage with their loved ones for the vacation to "count." Apparently, Kid President would not be in favor of the" work-cation" recently suggested in the Wall Street Journal. Those lovely days in Palm Springs for our AALS Clinical Conference do not count.
Much has been said about the fact clinicians have the opportunity to guide students as they learn how to "act like lawyers." Lately, I've been thinking about what it looks like to guide them in how to" live as lawyers." I want to instill and demonstrate a reflective practice that considers what it is to fully live while practicing law. What does a full or satisfied or multi-faceted life look like? What are healthy rhythms of work and rest in the midst of a productive career? How do we perform differently when we are well-rested and recharged? Do we have any personal experience upon which we might make such a comparison? As we look toward a better balance in our full lives, these are the kinds of questions we need to be processing with our colleagues and our students.
So take a break, good colleagues! Find a weekend getaway or a last-minute trip abroad on your favorite discount travel site, skip out early for your local concert in the park, book a massage, buy those summer concert tickets, go for a hike or a stroll this weekend. And then, reflective practitioners that we are...let's jot down a few notes about what these practices did for us and to us. How did time away affect the way we relate to those around us? How long did it take us to unwind? Did any new ideas come to us as we stared aimlessly at the ocean/lake/forest? (Or while daringly climbing Mt. Hood as our colleague, Warren Binford, wrote about last month?) Finally, let's share our reflections with our students and encourage them to do the same. Let's normalize the idea of getting away and encourage our students to embrace opportunities to both work hard and recharge.
I’m gearing up to turn my email to auto-reply, turn my phone on airplane mode, and cram my family of six into a tent cabin in Yosemite. Relaxing? No, not a bit. But we'll have stories to tell! And I’m convinced that my family, my clients, my students, and I will benefit from the time away.
Where are you headed this summer?
Wednesday, June 24, 2015
One of the dangers of living in the Northwest is that you occasionally attend a school fundraiser and become the winning bidder on a climb to the summit of Mt. Hood. Now I have climbed a fair number of mountains in my day, but none technical and only one recently. Thus, after the semester ended, I found myself in the unusual role of student. Mine was not a class about law or writing or education; rather, this was a class about tying knots, which I know nearly nothing about.
Don’t get me wrong: I have been tying knots for well over forty years. Well, actually, one knot and it involves bunny ears, but if needed, I can even tie it in a double knot! However, in this class, we were not being asked to tie knots that will keep on your Disney princess tennis shoes with red flashing lights as you run across the playground. These were life-saving knots. The kind that get you out of crevasses and keep you from falling off cliffs. Knots you want to--need to--know how to tie in the dark without thinking. Prusiks. Clove lines. Bow hitches. Double eights.
And so there I sat with one of my climbing partners to my left, and the other to my right. Both had a vested interest in my mastery of these skills. Indeed, their life might depend on it. No longer the one in charge, I was suddenly a student well outside of my comfort zone learning a high stakes skill that I needed to master with peers watching and evaluating. The pressure was on.
The course was well designed. The instructors sent us a manual before class, listed online demonstrations to watch, went over a quick PowerPoint in class, and then broke us into small peer groups of 3-5 learners, plus one instructor, and handed us each a length of climbing rope to practice and demonstrate our knot-tying mastery. Our instructor quickly tied a couple of the assigned knots and then directed us to try. I panicked.
Here it was seven o’clock at night. I had not had dinner. I had worked all day. I had just met a publication deadline, returned from a business trip, and closed out the school year. I had two young children at home and not enough sleep. I was driving over two hours roundtrip at night to attend this class. I had not done my homework and was running on fumes. And it hit me.
The tables were turned. All year long I had provided my students with a variety of resources, assigned them work to support their learning, delivered content in multiple settings with a variety of media. I had created opportunities to work in different group sizes, and yet, when it came time to demonstrate their knowledge and skills, to apply their knowledge, they would sometimes look at me hungry, exhausted, and confused like they had no idea what they were doing.
Humbled, I meekly handed my rope back to the instructor and asked him if he could demonstrate how to tie just one knot, and this time more slowly. He did, but not nearly slowly enough. I still didn’t get it. I tried, but he quickly untied my jumble of climbing rope, and directed me to watch him again. He quickly tied it so fast that I could not break down all of the steps. I tried again, but it was clear I had failed. I asked him if he could let me tie the knot and coach me through it one step at a time. He agreed, but after the second step took the rope back and quickly tied it again. At this point, all of my teammates were done with this knot and were ready to move on.
He offered to teach me a different method for tying the knot for people "who struggled." I was being offered remedial knot-tying! "No!" I insisted, and then I dropped the H-bomb in a moment of panic and defensiveness. I had a doctorate from Harvard, and if they just gave me a few more minutes, I could catch up. One of my peers, reached out to assure me. She was a D.O., but this is different, she said.
The instructor suddenly felt uncomfortable and said that now he was intimidated. He was obviously doing something wrong. I assured him that it was my fault: I hadn’t done my homework. I just needed him to slow down and coach me through each step of the tying of the knot, which he did. Once we broke it down step-by-step, with me (the learner) as actor, we both identified what I was doing wrong. Like so many things in life, I had been overcomplicating the knot. Rather than tie it once, I was tying it twice, perceiving it as more complex than it really was. The problem was suddenly untangled.
After the class took a break and I grabbed a quick bite to eat, I quietly slipped into a different group, where I could escape the shadow of my double figure-eight failure and start fresh with a new instructor. I eventually mastered all five knots, and developed such a great rapport with my second teacher (who knew nothing about my near miss with remedial knot tying instruction) that after our field training, he offered to join us on our climb up Mt. Hood. Perhaps he just loves climbing mountains, or maybe, although he witnessed how much I learned in class, he also saw how much I do not know, how much I still have to learn, and knows that some students still need teachers to be ready to support and watch over them, even after class ends.
Monday, March 23, 2015
Via Prof. Kelly Browe Olson on the LawClinic listserv:
I am thrilled to announce that at our most recent faculty meeting the [University of Arkansas at Little Rock Bowen School of Law] faculty in attendance unanimously passed a proposal that creates a new Experiential Learning Requirement (ELR). This requirement will ensure that starting with the entering class in the Fall of 2015, every full and part-time student will participate in either a law school clinic, externship, or practicum in order to graduate. In order to ensure our part-time students have opportunities to work with clients, Professor Kelly Terry crafted three new distance learning practica.
There are three components to the ELR. In addition to a clinic, externship or practicum, the students must take a five-credit hour Lawyering Skills sequence and one of our newly developed one credit upper-level legal research courses. This means, at a minimum, the students will have nine hours of experiential learning when they graduate.
In drafting the ELR proposal we relied heavily on materials from the Best Practices for Legal Education and the 2013-14 Survey of Applied Legal Education, from the Center for the Study of Applied Legal Education. The clinicians at Bowen appreciate the support of our clinical colleagues who assisted in the development of the proposal, the non-clinical faculty at Bowen and we are grateful for the leadership of Dean Michael Schwartz and Associate Dean Terri Beiner.
Wednesday, March 18, 2015
I am so excited to be boarding a plane in the morning to participate in LegalED's Igniting Law Teaching 2015 on Friday, March 20, 2015, at American University Washington College of Law. CALI is a co-sponsor of the event. Live viewing will be available by webcast or, if you are in the region, join us in person by registering here: Registration.
The conference will feature talks by 35 law school academics and practitioners from the US, Canada and England – including several clinicians -- in a TEDx-styled conference to share ideas on teaching methodologies. LegalED’s Teaching Pedagogy video collection includes many of the talks from last year’s conference, which have been viewed collectively more than 5000 times.
The panels for this year include: Law Teaching for the 21st Century, Applying Learning Theory to Legal Education, The Art and Craft of Law Teaching, Using Technological Tools for Legal Education, and Pathways to Practice.
The Igniting Law Teaching conference is unlike other gatherings of law professors. Here, talks will be styled as TEDx Talks, with each speaker on stage alone, giving a well scripted and performed talk about an aspect of law school pedagogy. In the end, we will create a collection of short videos on law school-related pedagogy that will inspire innovation and experimentation by law professors around the country, and the world, to bring more active learning and practical skills training into the law school curriculum. The videos will be available for viewing by the larger academic community on LegalED, a website developed by a community of law professors interested in using online technologies to facilitate more active, problem-based learning in the classroom, in addition to better assessment and feedback.
I hope you can join us on March 20th, either live or virtually.