Sunday, August 26, 2012
It's called A Guide to Teaching Lawyering Skills by Joel Atlas, Lara Gelbwasser Freed, John Mollenkamp, Andrea J. Mooney, Ursula H. Weigold, Michelle A. Fongyee Whelan and is available from Carolina Academic Press.
Here's the publisher's summary:
This book is designed for teachers of legal research and writing courses. Both new and seasoned legal writing teachers will benefit from the book, whether they are full-time professors, adjuncts, fellows, program directors, or teaching assistants. A Guide to Teaching Lawyering Skills explores the essential components of the teaching process, including setting course goals; creating a curriculum, syllabus, and assignments; developing teaching methods; providing feedback to students both orally and in writing; evaluating and grading student work; working with teaching assistants; and enhancing professional development. The focus of the book is practical, and its suggestions are specific and concrete. Chapters include a bibliography of additional resources for teachers.
I have talked a lot on this blog about the ideas of Daniel Kahneman on how cognitive biases affect our thinking, and I have written a review of how his ideas apply to law and legal education. (here) Now, four authors have written an article that applies Kahneman's ideas to a focused chunk of legal education--how the order that torts are taught affects the students' views of the judicial role.
What's on First?: Organizing the Casebook and Molding the Mind by Donald G. Gifford, Joseph Leonard Kroart, Brian M. Jones, & Cheryl Cortemeglia.
Abstract: This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.
In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.
Each year, Professor Jay Wexler pores through the transcripts of Supreme Court oral arguments to determine how many times each Justice provokes laughter with his or her wit. The top laugh-getter for the past term? Justice Scalia. He frequently comes out on top.
The complete rankings:
- Scalia: 83
- Breyer: 56
- Roberts: 30
- Kagan: 15
- Alito: 7
- Sotomayor: 6
- Ginsburg: 2
- Thomas: 0
Saturday, August 25, 2012
Steven Harper, a former BigLaw partner who blogs at Belly of the Beast, explains what he believes are the benefits of amending the bankruptcy code to permit the discharge of student loan debt. Prospective law students would have to convincingly articulate to lenders their reasons for attending law school which might give pause to those who go simply because they don't know what else to do. Related to that, lenders would have to be more careful in making law school loans because only those applicants who stand a good chance of actually practicing law would justify the risk. At present, students fresh out of college are often too cavalier in taking on so much educational debt while lenders have no reason to differentiate between loan applicants because every one of them is on the hook no matter their financial condition.
In the interview below, Mr. Harper makes good points as well as explaining the interesting history of how student loan debt came to be exempted from bankruptcy protection. But as a practical matter, how would lenders assess the ability of law school applicants to pay their loans? I guess the elite schools would be unaffected by Mr. Harper's proposal because their graduates are almost sure to find jobs that will enable them to pay back their loans while other schools would be under pressure to contain costs by lowering tuition or face the prospect of closing if lenders believe the return on investment for their graduates isn't justified.
Friday, August 24, 2012
By and among jurors, that is. From the ABA Journal blog:
New model jury instructions (PDF) developed by a federal Judicial Conference committee expand a previous ban on social media use and explain in simple terms that jurors are not supposed to use electronic tools or talk about the case, period, except during deliberations.
"In other words, you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case," state the model instructions recommended by the Committee on Court Administration and Case Management for use at the end of trial. "You can only discuss the case in the jury room with your fellow jurors during deliberations."
The instructions also list, generally and specifically, what is apparently intended to be an all-inclusive list of prohibited methods of communication via social media and other electronic means and impose on jurors a duty to turn in other jurors who violate this ban.
Specifically prohibited are cell phones, Blackberries, iPhones; the Internet, email, blogs and websites; and text messaging, Facebook, Google+, LinkedIn, MySpace, Twitter and YouTube. In case something is left out of this list, the instructions also prohibit using "other tools of technology" and "any similar technology of social media," regardless of whether the judge specifically mentioned it.
"I expect you will inform me as soon as you become aware of another juror’s violation of these instructions," the judge is supposed to inform jurors, both at the beginning and at the end of trial.
Late last week, legal writing professors and others sent a letter to the Yale Law School Administration concerning a post on the Yale Law School admissions blog. I have set out the letter below, with permission of Lisa McElroy, who spearheaded our efforts. We owe our deepest thanks to Lisa, Kris Tiscione, and Amy Vorenberg for drafting the letter. We also owe our thanks to the many deans, associate deans, and doctrinal profesors who signed the letter. About 450 legal educators signed the letter.
Dear Dean Post and members of the Admissions Committee:
As professors at law schools across the country, we write to address a blog post by Associate Dean Asha Rangappa (see P.S.B.C.: Back by Popular Demand (June 9, 2011), available at http://blogs.law.yale.edu/blogs/ admissions/archive/2011/06/09/back-by-popular-demand.aspx). The post observes that potential transfer students make the "common mistake" of submitting one of two required recommendations from a legal writing "instructor." Although "a third letter from a legal writing instructor is fine," the Committee prefers recommendations from "core subject area professors, who can speak to [a student’s] ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts."
If the post represents the policies or preferences of the Yale Law Admissions Committee, many of us are concerned it sends a message that legal research and writing ("LRW") courses are not rigorous, underestimates the ability of LRW faculty to comment on students’ cognitive skills, harms students by discounting the valuable and thoughtful insight we have to offer about students seeking to transfer to Yale, and devalues LRW professors as a whole. To the extent the advice you provide as a top tier school might be interpreted as applicable, or preferable, to a wider law school audience, we feel the statements lacking in appropriate evidentiary support need correction.
Every year, the Legal Writing Institute and the Association of Legal Writing Directors– the two professional organizations for LRW professors and those interested in the discipline– survey a number of ABA-accredited and provisionally accredited law schools that grant the Juris Doctor degree. One hundred eighty-four of the 200 schools surveyed responded to the 2012 survey. At least 170 of those schools require LRW in the first year and award four or more credits for a year-long course. One hundred sixty schools grade the LRW course and incorporate the grade into the students’ overall GPA. As the survey indicates, the post’s characterization of LRW as other than a "core subject area" class is inaccurate.
The Committee may be unaware that the typical LRW course requires students to conduct research on complicated legal questions, engage in complex legal analysis, communicate well orally and in writing, conference regularly with their professors on their performance, and behave both ethically and professionally. Accurate, in-depth legal analysis and reasoning are at the core of an LRW course.
The notion that LRW is not a core subject area class is also inconsistent with current thinking about legal education. Consider, for example, the 2007 Carnegie Report, which emphasized the importance of legal writing classes, as well as Justice Kennedy’s statement this week to the Ninth Circuit Judicial Conference: "[L]aw schools are questioning whether or not they are teaching students the right way, and it seems to me that the bench and the bar can engage in serious discussions with the law schools to advise them whether or not, say for the next 20 years, that [sic] they have the proper approach for teaching those who will soon be the trustees of the law as active practitioners. That is urgent."
Given the small size of LRW classes; our knowledge of individual students; and our familiarity with their class participation, writing, oral skills, and personality, we have a unique perspective on our students’ abilities at any given time. Here too, the assumption that we are not in the same position as a Property or a Contracts professor to comment on their ability to "keep up," "contribute to class discussion," or "think through difficult concepts" is inaccurate.
We recognize the primary mission of the Committee is to admit students who can compete at an elite institution. Nevertheless, discounting recommendations from LRW faculty could deprive potential transfer students of critical faculty input. LRW faculty often know 1L students the best in terms of what matters most – their achievement, motivation, raw talent, analytical skills, ability to communicate effectively, and measured progress. Because the post reaches a far wider audience than those students who will eventually matriculate at Yale, we are concerned about the extent to which it suggests that the Yale Law faculty considers LRW professors to be lesser faculty in some sense, passing onto the next generation of law students a bias that LRW and its faculty are not worth their time, attention, or care.
For these reasons, we urge you to reconsider your practice of discounting recommendations from LRW faculty and welcome them as informed and reliable accounts of the transfer students you might soon welcome at your door. We also respectfully request that you amend the post in question accordingly.
As legal educators, we all share the goal of offering the best legal education possible to our students. Our purpose here is to clarify the contribution LRW professors make toward achieving that goal. We thank you in advance for your consideration of this letter.
Earlier this past summer, I attended my first SEALS Conference. SEALS stands for South Eastern Association of Law Schools, although an increasing number of schools from around the country have joined. The conference, now really a national conference, was packed.
The Association of American Law Schools had better look to its laurels. Unlike the AALS conference, the SEALS conference was relatively inexpensive and held in the summer at a Florida hotel . Instead of featuring talking heads, the session emphasized discussion groups lead by a variety of prominent and interesting professors. The level of informality was refreshing.
In these days of tight travel budgets, can foresee a great number of profs forsaking the moribund AALS Annual Meeting for some time in Florida.
Directly below, one of my co-bloggers has a post that says "Intensive preparation for the Law School Admission Test (LSAT) actually changes the microscopic structure of the brain, physically bolstering the connections between areas of the brain important for reasoning." Other studies have concluded the same thing; that directed learning changes the neurobiological structure of the brain. (see generally Duane F. Shell et. al., The Unified Learning Model (2010)). In fact, one study has discovered that "Structural MRIs of the brains of humans with extensive navigation experience, licensed London taxi drivers, were analyzed and compared with those of control subjects who did not drive taxis. The posterior hippocampi of taxi drivers were significantly larger relative to those of control subjects. A more anterior hippocampal region was larger in control subjects than in taxi drivers." (here) In other words, the brain region associated with navigation is larger in taxi drivers than in non-taxi drivers. These authors concluded, "It seems that there is a capacity for local plastic change in the structure of the healthy adult human brain in response to environmental demands." In sum, learning not only changes the synapses in our brains, it can actually grow brains.
This post from Science Daily caught my attention.
“Intensive preparation for the Law School Admission Test (LSAT) actually changes the microscopic structure of the brain, physically bolstering the connections between areas of the brain important for reasoning, according to neuroscientists at the University of California, Berkeley….
The new study shows that reasoning training does alter brain connections, which is good news for the test prep industry, but also for people who have poor reasoning skills and would like to improve them. The findings are reported today (Wednesday, Aug. 22) in the open access journal Frontiers in Neuroanatomy.”
Hat tip @SoloPracticeU
Thursday, August 23, 2012
Need a refresher on usage? Try this article by Judith Fischer:
Abstract: This article covers some contemporary English usage problems that appear in legal writing, including dangling modifiers, confusing deletions of the relative pronoun "that," and misuse of "begs the question" and "as such."
P.S. Carolina Academic Press has recently published her book, Pleasing the Court: Writing Ethical and Effective Briefs (2d ed., Carolina Academic Press 2011), which "analyzes courts' reactions to errors in lawyers' documents."
Here's a great post on clear writing tips from the Lawyerist blog that you may want to pass on to your students. It affirms what I've always believed; that bad writing is almost always the result of bad thinking. Thus, the writing process really boils down to refining your ideas by way of multiple drafts in which you are trying to work through on paper exactly what it is you want to say. It's hard work - sometimes grueling - for which there aren't any shortcuts.
On the other hand, students struggling with legal writing for the first time should understand that many good writers consult a mental checklist to help guide them towards a good final product. Chief among the points on that checklist should be a constant reminder to ask oneself "will the reader understand what I'm saying here?" I refer to this in class as being "other-centered" as a writer; don't focus on whether you, the author, understands your writing but instead focus on whether the "other" - your reader - will.
This post from the Lawyerist characterizes this as the need to empathize with one's audience. And here's a list of tips they say will help you do just that:
How Can Legal Writers Empathize With Their Readers?
If focusing on and empathizing with the needs of readers results in clear thinking and writing, in practice how can lawyers achieve these goals?
First as a commercial litigator, and now as corporate counsel, I’ve tried to focus on and empathize with my readers’ needs by:
- Writing a brief or corporate document like a newspaper article, with a good lead or introduction, a conversational tone, and short, uncomplicated words and sentences. In fact, when I receive feedback that my writing is “conversational,” “flows well,” or “makes sense,” I know I’ve succeeded in empathizing with my reader’s needs.
- Reading documents out loud to determine whether the sentences flow smoothly, or if there are ways to cut legalese, verbiage, or my darlings. If I can’t read a document to myself or to another person without repeatedly stumbling over my prose, I know that my readers will have the same difficulty, and that it’s time to revise.
- Being honest with myself about whether non-lawyers could understand the points I’m making without knowing anything else about the topic. If I conclude that a non-lawyer can digest my presentation without additional explanation or background, then I know I’m serving my reader’s needs, even if the reader is another lawyer.
- Letting my thoughts distill overnight. I’m amazed at how a good night’s rest clarifies my thoughts about how to make a document read more smoothly. It’s almost as if my brain defragments overnight, allowing me to revise sentences that the night before seemed impenetrably abstruse.
- Not waiting until 10:00 p.m. the night before a document is due to write a first draft. I know that some lawyers think they do better work late at night. But it’s impossible to empathize with your reader’s needs when you’re rushed and tired. When your body is stressed, you can’t think clearly, much less write clearly. So becoming reader-centric requires adequate planning so that your failure to plan doesn’t become your reader’s emergency.
Ernest Hemingway once claimed in an interview that he rewrote the ending of Farewell to Arms 39 times before he was satisfied with it. Asked what in particular had stumped him, Hemingway candidly admitted, “Getting the words right.” It’s plain, then, that even writing giants sometimes struggle to think clearly.
This should give hope to the struggling legal writer. If you struggle with muddy thinking, stop fretting about it. Instead, start focusing on how to empathize with your readers’ needs. If you do that, your readers will start noticing your improved writing. And, before you know it, your readers will begin to appreciate your efforts.
Wednesday, August 22, 2012
A few days ago, the New York Times ran a story about how media companies are eagerly developing digital textbooks for school children hoping to capture a big market share in this $3 billion dollar industry. Interestingly, though, among college students e-textbooks continue to be a hard sell. According to a recent survey of students attending Cornell, U. Indiana, U Minnesota, UVA and U. Wisconsin, the majority of students find e-textbooks "clumsy" preferring print for school work. Is this just a question of publishers needing to develop a better e-book platform or is paper fundamentally a superior medium for serious reading? The companies investing in e-textbooks believe it's the former. The Chronicle of Higher Ed has the story:
Several universities have recently tried a new model for delivering textbooks in hopes of saving students money: requiring purchase of e-textbooks and charging students a materials fee to cover the costs. A recent report on some of those pilot projects, however, shows that many students find the e-textbooks “clumsy” and prefer print.
The report is based on a survey conducted this spring of students and faculty at five universities where e-textbook projects were coordinated by Internet2, the high-speed networking group. Students praised the e-books for helping them save money but didn’t like reading on electronic devices. Many of them complained that the e-book platform was hard to navigate. In addition, most professors who responded said that they didn’t use the e-books’ collaborative features, which include the ability to share notes or create links within the text.
. . . .
“With technology, many things change with repeated use,” [a spokesman for the project] said. “People have lots of early first impressions as they experience new things, and then over time you start to see things become more mainstream, as the technology improves and skills and even attitudes toward use improve.”
According to the report, students said e-textbooks “somewhat” became part of their learning routine but didn’t help them interact more with classmates or the professor, largely because most people didn’t use the collaborative features. [The project spokesman] noted that the students of professors who did annotate their e-textbooks reported having a better experience, since “these capabilities make the electronic text much more than just an alternative to a physical book.”
Continue reading here.
A few days ago, I had lunch with big firm lawyers who were interviewing our students for jobs next summer and next year. Although they had wonderful things to say about our students, they did mention a few matters that disconcerted them:
- Excessive casualness in demeanor. Don’t slouch. Sit up straight. A first interview is probably not the time to address your interviewer by his or her first name.
- Interrupting statements with “like” and “um.”
- Odd looking resumes, indicating that students did not take advantage of people and resources at the school who could help them draft a professional resume.
My last post concerned what contributions legal writing professors can make to legal education. This post involves what contributions legal writing professors have made to the academy, by focusing on the career of Marjorie Rombauer, a pioneer in legal writing education. My information comes from An Interview with Majorie Rombauer by Mary S. Lawrence, which originally appeared in the Journal of the Legal Writing Institute in 2003. This interview serves as a history of the early days of legal writing programs.
From the very beginning, Rombauer taught a rigorous course. Mary Lawrence declared:
"Her text Legal Problem Solving: Analysis, Research and Writing similarly broke new ground. With its emphasis on analysis and problem solving it demonstrated that legal writing instruction was more than mechanics and grammar. It proved that a legal writing program could be as academically demanding as any other law school course."
Rombauer has always believed that "we were not teaching legal writing, we were not teaching research, but we were teaching a process, the whole thinking process: " For example, she has stated, "you can't learn to do effective research by just finding an answer to a question somebody else gives you. You must learn the whole, integrated sequence of thinking and developing the question, and that is the process I think we should be teaching. When I was trying to sell this to the faculty they were saying,’We're teaching analysis in all of the classes.’ And I would say, ‘No, you're not. You are teaching how judges look at cases. We are teaching how lawyers look at cases.’" She has added: "I am teaching how a practicing attorney or a scholar—more a practicing attorney—works. In your classes, you start with the end result - the law. And you back up and try to build problems around it. I start with a problem and try to find, 'this is a possible solution, this is a possible solution, this is a possible solution.' And you do not—in most classes—talk about the mental process."
Rombauer’s role as a legal pioneer appears in a document she wrote early in her career,
DEFICIENCIES OF THE "CASE METHOD" IN DEVELOPING OPINION AND PROBLEM ANALYSIS SKILLS: HOW THESE DEFICIENCIES MAY BE OVERCOME IN THE LEGAL ANALYSIS COURSE" (Appendix B of the Lawrence interview). In this article she recognized the deficiencies in the "case method." First, "Rarely is an individual student led through use of a minimal progression of the skills (analysis of opinions, synthesis, application) to solve a single hypothetical problem." Second, "A course may produce understanding of opinions and other materials in an area of law without developing the basic skills for some students. (How many students rely on commercial or former students' briefs and syntheses and on what can be drawn from class discussion to acquire "knowledge" without really participating in the distillation process and even without appreciating that they have not participated in the most important part of the process?)" Third, "The necessity for dealing with uncomplicated factual patterns tends to cripple students in dealing with the type of un-patterned factual collections with which they must ultimately learn to deal; they learn to deal with absolutes rather than with probabilities or possibilities and with neat, complete (for purposes of a single issue) fact patterns rather than with inconsistent and incomplete fact collections." Fourth, "The subject matter and materials dictate what skills can be emphasized and when they can be emphasized." Finally, "The course compartmentalization tends to give students [an] unrealistic view—of tort problems, contract problems, property problems—rather than of "problems," which require dealing with many of the artificial subject compartments or with the overlapping areas of the artificial compartments." Remarkably, all of these criticisms still apply to the case method, which is the main method of doctrinal teaching today.
Marjorie Rombauer is just one of the pioneers that developed the field of legal writing and changed law school teaching. Law schools would not be the same without contributions from the legal writing faculty.
(Scott Fruehwald) (thanks to Sue Liemer for pointing out this article to me)
If you don’t mind spending $39.99, you can download The Bluebook, A Uniform System of Citation on your mobile device. The app is called Rulebook (which is free) and then you add the Bluebook as library content ($39.99). Federal rules and some state rules are also available.
You can access the app through iTunes at http://itunes.apple.com/us/app/rulebook/id454619081?mt=8.
If you act today (Aug. 22), several of the Federal Rules collections are being offered for free.
Tuesday, August 21, 2012
We'd previously followed the efforts of a new law grad to open a solo practice which he documented at the blog I Just Want to Practice Law. After receiving a job offer from the local DA's office, he folded his solo tent in pursuit of a more steady paycheck while offering advice about the lessons he learned along the way. Some readers found it helpful to learn from this lawyer's experiences, albeit brief, in order to more successfully launch their own solo practices.
In the same vein, here are a couple of posts (here and here) from the blog My Shingle in which an experienced BigLaw associate discusses his decision to leave his firm in order to start a solo practice, what he learned from the experience and why he chose to abandon his efforts after two years of trying. Perhaps other can learn from this lawyer's experiences too. Chief among the advice offered is the importance of allowing enough time to establish a significant online presence (through Facebook, Twitter, LinkedIn, AVVO, JDSupra and every online legal directory you can find), establish a blog on which you post substantive content about your practice area at least a couple of times per week and the constant attention all these activities require to make sure your marketing efforts are working. Another lesson this lawyer learned is that, in hindsight, he would have forgone the expense of an office rental to reduce his overhead as much as possible.
Read his first (anonymous) post here.
Hat tip to the Lawyerist blog.
Sponsored by the Center for the Study of Dispute Resolution at U. Missouri, it will be held on October 19, 2012. Speakers include Lisa Kloppenberg, Clark Cunningham, Barbara Glesner Fines, David Moss, Hon. Solomon Oliver, John Phillips, and Judith Welsh Wegner. Here's a description from the school's website:
There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to "think like a lawyer" is still important but it is not enough for students to be able to act like a lawyer soon after they graduate.
Training lawyers is especially difficult because lawyers work on many types of problems, both when handling disputes and negotiating transactions. Some legal disputes are resolved at trial or on appeal, but most are resolved through other processes in the "shadow of the law." Although legal education has evolved in recent decades, the legacy of the Langdellian system makes it hard to combine instruction in legal doctrine, practical skills, and clinical experience.
Recognizing the general problems of legal education is fairly easy. Solving them can be quite hard. Law schools serve many constituencies that have demanding and diverse interests. Needed time and money are scarce and there is no one-size-fits-all solution.
This symposium brings together scholars, practitioners, and judges to analyze the needs of stakeholders of legal education and how law schools can most effectively satisfy those needs.
This symposium is free and has been approved for 3.6 hours of Continuing Legal Education credit in Missouri.
Directions and parking information for the University of Missouri School of Law can be found on our directions page.
For further information, please contact Laura Coleman at 573-882-5969 or firstname.lastname@example.org.
Click here for the program schedule.
Click here for the list of speakers.
According to a recent study, the answer is yes.
From the National Law Journal (excerpts):
A study titled "Does Race Matter in Educational Diversity? A Legal and Empirical Analysis," concludes that law students actually do benefit from racial diversity on campus and that law schools should work to maintain diverse classes.
University of North Carolina School of Law professor Charles Daye conducted the research with UNC psychology professor A.T. Panter; University of California, Los Angeles sociology professor Walter Allen; and University of North Carolina at Greensboro professor emeritus Linda Wightman.
"Diversity matters in the way students conduct conversations in class, how they interpret cases, in the way they interact in social settings and with their professors," Daye said. "The students told us that they learn from each other: white students from black students and black students from white students."