Sunday, September 25, 2011

New legal skills scholarship: "Improving clinical judgment in lawyering with multidisciplinary knowledge about brain function and human behavior: what should law students learn about human behavior for effective lawyering? "

This is by Professor Beryl Blaustone (CUNY) and is available at 40 U. Balt. L. Rev. 607 (2011). From the introduction:

This article explores the significance of emerging multidisciplinary theories about brain function that dictate profound reassessment of basic lawyering assumptions about human behavior. These emerging theories indicate that, as human beings, our perceptions and memories are flawed, and as a result, lawyers work with distorted information that influences our thinking. This article describes how the brain functions to create these distortions, how this affects law practice, and how we can teach students to compensate for these deficiencies in thinking. I argue that these premises should be integrated into the teaching of law and lawyering to law students.

Several universal and unconscious dimensions to human behavior or brain function significantly affect the lawyer's conscious decisions and actions. New substantial knowledge about how the brain works as well as significant scientific attention to the biological basis of the human capacity for perception and decision-making exists that  explains biological bases underlying human behavior. This article explores how this knowledge about brain functioning enables law students to perform more effectively as they acquire the range of lawyering skills including the fundamentals of fact investigation, fact analysis, and problem solving in their law school curricula.
In section II, I explore the following specific premises of brain function that affect law practice: (1) we automatically think we know more than we do; (2) what we believe to be objectively true is not necessarily so; (3) the objects we perceive are not necessarily as they appear to be; (4) accurate memory recall is a falsehood; and (5) we have a structure for creating and storing memory that narrows what we are able to remember through a process using categorization and metaphor. I also illustrate how these premises interfere with the clear thinking lawyers need.
In section III, I propose a systematic framework of internal monitoring called “Intentionality” as a method for lessening the distortions created by our brains. I advocate that law schools teach students how their brains function to distort information and how they can use this Intentionality framework to gain self-awareness to compensate for this distortion and lessen the adverse effects of our default assumptions about the functioning of our mental processes.
The Intentionality framework involves a three-step process. This framework is one of attention that is controlled from the inside. One way to tear down erroneous mental preconceptions is to pay attention to the “small thoughts” within us that preface our external reactions. The framework is a repetitive cycle of internal intention to external attention; external attention to action; and action to reflection. Once mastered, the cycle becomes more nuanced and recursive. To begin adoption, the process is deliberate and conscious but as the individual successfully practices Intentionality, the process becomes habitual and highly adaptive. My key premise is that following the cycle of this framework and focusing on these premises about human behavior leads to improved understanding of external circumstances, better recognition of the issues to be solved, and greater capacity to effectively respond to the problem.
In section IV, I explore ways to teach the Intentionality framework in both classroom dialogue as well as in lawyering or clinical supervision. Students can apply this framework to incorporate Intentionality into their broader legal problem-solving analysis. Using their knowledge of brain functioning, students can explore how distortions occur and parse apart with increased rigor any legal or fact analysis.
All three major reports on the state of legal education in the United States over the past two decades indentify the need to teach law or lawyering within a reality-based context as well as embedding greater metacognitive reflection capacity in the law student. Over the past forty years, law schools have been criticized as lacking the integrated experience-based curriculum necessary to teach students how to provide effective and responsible legal services. Scholars, practitioners, and judges alike have identified the need for educational institutions that train future legal professionals to pay more attention to what law students need to learn, how law students learn best, what teaching methods are most effective, and what duties the law school has to the profession and the society it serves. From these observations, significant historical and present-day support has developed for integrating a reality-based context into teaching law, lawyering, or both to help students achieve the level of professionalism that justifies a claim to an exclusive right to engage in the practice of law. Legal educators have a responsibility to reevaluate assumptions about how one learns to “think like a lawyer” and discover new methods of conceptualizing and providing student-centered legal education.
The MacCrate Report built upon the American Bar Association's (ABA) efforts to develop, through a dialogue, an understanding of the state of professional-skills education in law schools and to determine whether law school curriculums were adequately preparing students to perform effectively as lawyers after graduation. The ABA Council of the Section of Legal Education and Admissions to the Bar established the Task Force on Law Schools and the Profession: Narrowing the Gap, which developed a “Statement of Fundamental Lawyering Skills and Professional Values” (Statement) to define the lawyering skills and professional values necessary to the responsibilities of a member of the legal profession (i.e., making professional judgments or giving legal advice). The Statement is the subject of the MacCrate Report (Report), Legal Education and Professional Development--An Educational Continuum. The skills and values identified in the Statement include litigation and alternative dispute-resolution procedures; factual investigation; striving to promote justice; fairness and morality; striving to improve the profession; and professional self-development, among others. The Statement understands “professional self-development” as the commitment to increasing one's own knowledge and improving one's own skills by making use of the process of “reflecting upon and learning from their lawyering experiences.” The Report states that this process involves a critical assessment of one's own performance--including one's preparation, the performance itself, and the identification of practices that will enable replication of effective components of the performance and prevent recurrence of ineffective ones. With the hope of encouraging a stronger sense of ownership in students' own decision making, the Statement places more of an emphasis on the student's individual role in shaping his or her own legal education to meet their professional goals and the demands of the profession. The Report concludes that law schools need to recognize that the task of educating students to assume the full responsibilities of a lawyer is an ongoing “process that neither begins nor ends with three years of law school”; rather, a continuum exists that mandates students develop a capacity for self-reflection and awareness of their professional practice.
The decade following the publication of the MacCrate Report found bar associations, law schools, and judiciaries formally convening in more than twenty-five states to discuss the Report's findings and recommendations. From these ongoing discussions, members of the Clinical Legal Education Association (CLEA) in 2001 established a committee of legal practitioners and academics to create a “Statement of Best Practices for Legal Education.” Professor Roy Stuckey of the University of South Carolina School of Law was asked to chair the committee. The final report, Best Practices for Legal Education (Best Practices), developed collaboratively over six years, advocates that one of the goals of legal institutions must be to help students acquire the attributes of effective, responsible lawyers, including “self-reflection and lifelong learning skills, intellectual and analytical skills, core knowledge of the law, core understanding of law, professional skills, and professionalism. The Report calls for law schools to use best practices for assessing student learning by first identifying “[t]he goals of [the] particular assessment . . . to evaluate a student's knowledge, behavior (what a student does before and after a learning experience), performance (ability to perform a task), attitudes and values” before and after a learning experience.The Report points out that these goals require different methods to assess each of the educational objectives trying to be achieved. For example, assessing a student's capacity for self-reflection or professionalism necessitates a different assessment method than for core knowledge of the law or analytical analysis. The Report calls for more use of criteria-referenced assessments that determine how well the individual student has achieved the educational objectives of the course, rather than normative assessments based on how students perform in relation to other students. In turn, these assessments are used to provide students with formative feedback, which the Report emphasizes should “be the primary form of assessment in legal education.” The Report builds upon the contemporaneous Carnegie Report's findings that contemporary learning theory suggests educational effort is greatly enhanced by the use of formative assessment while summative assessments (i.e., tests, grades, etc.) are “‘devices to protect the public by ensuring basic levels of competence.”’
The Carnegie Foundation for the Advancement of Teaching's report, Educating Lawyers: Preparation for the Profession of Law, identified effective means of formative assessment as critical to educating professionals since the goal of professional schools must be to develop practitioners who are cognizant of what they need to do to engage in the best practice in their profession and to equip them with the capacity for self-reflection to pursue expertise--thereby becoming “‘metacognitive’ about their own learning.” In response, Best Practices provides various assessment techniques identified by educators and practitioners, specifically “techniques for assessing prior knowledge, recall, and understanding,” such as a misconception or preconception check prior to a simulation or a discussion on a particular material to uncover prior knowledge or beliefs that may hinder or block learning.
The Intentionality framework that I have developed is such an assessment technique to assist students in applying a metacognitive approach to their own learning. It can be used to help law schools teach students to develop self-awareness and understand why such awareness is so important to the legal practice--a public service profession that deals with the manifestations of human behavior on a day-to-day basis.
Critical race, gender, and legal theorists have, for some time now, advocated a subjective understanding of human behavior based on the subjectivity of knowledge grounded in one's individual experiences. However, how do such subjective processes affect one's thinking and decision-making? An understanding of our cognitive processes is vital to assessing what we think we know. Legal theorist, Steven L. Winter, who has written a book assessing the implications of cognitive science for law and legal theory, explains that cognitive science shows the mind is neither a computer, processing input gathered from the senses, nor a cultural concept, at the mercy of our own “creativity.” Rather, studies show that the mind is formed by our interactions with the physical and social world. This is a dynamic and imaginative process that is the foundation of “human thought and rationality.” However, this imaginative process operates in a systematic and orderly way, so, as Winters asserts, a capable model of human knowledge can exist. Neuroscience is moving towards an objective understanding of the influence of subjective factors, such as internal and external stimuli and cultural systems, on human thinking. By understanding our cognitive structures and their impact on our reasoning, we can understand our own judgment better and improve decision-making.
Human behavior is a characteristically complex system. As Erica Beecher-Monas and Dr. Edgar Garcia-Rill explain, “Complexity theory explains that we, as individuals, are interacting parts of a complex world, we have numerous interactions with our environment, and the instigator of our actions, the brain itself, is a complex organ.” Therefore, complexity theory shows the importance of measuring all relevant information in order to make more accurate judgments. Today, relevant information in criticizing and restructuring our understanding of human behavior includes neuroscientific research and findings. Perhaps, once we can understand how complex the origins of human behavior are, we will better be able to prevent certain factors from negatively influencing other factors.
The multidisciplinary study of brain science reveals that the brain's mental functions are extremely interactive and dynamic. Neuroplasticity is now an established theory that the brain is highly adaptive and that some brain functions are transferable to different brain regions. Neuroplasticity also refers to learning capacity that is more extensive than previously thought. In fact, studies suggest that learning is a process that an individual can effectively utilize despite significant lapses and issues of aging. For example, comprehension of specific material can be consolidated even though the study activity has lapsed for several years or has been interrupted due to traumatic brain injury Thus, actual learning occurs in “fits and starts” from one moment to the next. Often the learning proceeds in a backward momentum, which is similar to the way memory is reconstructed. In other words, learning is a “groping” process.


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