Friday, February 28, 2020

The Dangers of Casetext's Compose

Everyday, we see a new technological tool that promises great advances for lawyers and the legal profession.  As legal educators, we need to carefully evaluate these tools to determone whether they will help or hurt our students.  The latest tool, Casetext's Compose, presents many dangers for lawyers and law students.

"Casetext is launching an AI driven drafting tool called Compose. Compose does not promise to replace lawyers – it offers to make lawyers more efficient by automating the first draft of a motion or brief. It can also function as a tutorial for a new lawyer who is assigned with drafting a motion for the first time.   Casetext is currently working with a group of law firm 'partners' who will help them develop an expanded library of motions."  (here)  Read the bold-faced portion again--"by automating the first draft of a motion or brief."  WOW!!!!!!  Automation can write the first draft of a brief.  Who needs lawyers?

The article continues: "The press release positions Compose as being 'poised to disrupt the $437-billion legal services industry and fundamentally change our understanding of what types of professional work are uniquely human. Casetext is certainly the first company I know of to successfully automate the drafting of substantive documents such as motions and briefs."  Who needs lawyers?

Here's more: "There is no doubt that partners worry about associates research abilities and clients object to  being charged for the time of few associates who are 'learning on the job.'  Compose promises to dramatically reduce the drafting time for a motion which according to the press release 'often takes 10-80 hours of billable work: searching case law databases, consulting treatises, digging through brief banks, etc. Compose enables an attorney to construct a compelling, well-supported legal argument in 20 minutes.'"  Who needs associates?  Law firms no longer need to train their lawyers!

"The Compose process is remarkably straight forward. After selecting the motion type, a lawyer indicates whether they are representing the plaintiff or defendant. They select the jurisdiction and then the lawyer selects the issues to be addressed in the motion based on the facts and the motion is built through a series of clicks where the lawyers selects the best arguments supported by precedent."

Here is a quote from an actual law firm partner,

“Compose gets you 95% of what you need to file”

Cameron Ellis
Partner, Ellis & Thomas, PLLC"  (here)

(According to the State bar of Texas (here), Mr. Ellis's firm size is solo.)

I tried Compose on their website.  (here)  The website asks you questions and fills in arguments based on your answers.  It is as simple as "Paint by the Numbers," and produces as effective results.

When I first saw mention of Compose on the Legal Writing Listserv, I immediately warned the others on the listserv that Compose was dangerous to our students.  I stated, "It undertakes cognitive processes that students need to learn. It seems as dangerous as Quimbee."

Legal reasoning and analysis involve particular cognitive skills.  (See How To Succeed in Law School (2019) & How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018))  Students need to acquire these skills in law school.  Any tool that substitutes for the students' development of cognitive skills robs them of part of their ability to be lawyers.  For example, case briefing, when done properly, is a key part of legal education because it develops the ability to analyze cases, along with other legal reasoning skills.  Students' use of canned briefs takes this away from students' cognitive development.  Oh, it is so easy to use canned briefs.  Just have them in front of you in class, and you will never give the wrong answer.  You don't have to worry about hours of class prep.  Case briefs are wonderful.  Except when exam time comes, and you get a C.  It must be the professor's fault; she was a poor teacher and unfair tester.

The same is true of Compose, but on a more advanced level.  Students need to develop arguments piece by piece.  They need to be able to find the best cases for their particular facts.  They need to be able to construct arguments based on their particular facts.  They need to show in detail how the law applies to their particular facts.  You get the idea. Compose does this for the students.  As the testimonial on their website proclaims, Compose does 95% of the work.  With Compose, students can become lawyers in a month!

In sum, law schools and law professors should keep their students far, far away from Compose.  Students cannot attain mastery through shortcuts.

But, there is more: Compose takes away the very essence of being a lawyer--the human side.  One of my legal writing colleagues, Kathryn Falk Campbell of Southwestern Law School, pointed this out to me, "While it seems that non-lawyers could potentially benefit at some level from a tool like this, I am gravely concerned that it could work a tremendous subterfuge in our justice system. The core of a lawyer’s work is to understand and articulate the nuances of the words and strategic choices of legal opinions, and to carefully appreciate and balance the values and impact of a multitude of perspectives, arguments, and outcomes. The need for the lawyer’s lens of human and social values is crucial to generations to come. A lawyer’s choices impact personal, social, and political order in communities, cities, states, the world, and - someday soon - the solar system and beyond.

The lawyer’s judgment is one of the largest measures of the lawyer’s professional worth. To substitute a program like this for the lawyer’s judgment abrogates the profession’s most fundamental duties.  (emphasis added)

How can anyone LEARN to 'choose the best argument' without cultivating and relying upon an awareness and deep understanding of the numerous subtle energies, values, and other forces at play in making that choice? This is a fine tuned judgment skill."

Finally, as every lawyer knows, every case is different, and a cookie cutter approach just won't do it.  Another commentator on Compose has noted, "My concern is that good lawyers approach every case as sui generis. There is no such thing as a “garden variety” case, even if the charges sound pretty much like the charges in every buy and bust ever. Find the difference, whether it’s in the facts or the defendant or the law or something. Find it. Create it. Make it happen. Think it. That’s why the defendant came to you, not to be a yeoman but a master."  (here)  He continued, "For the most part, a lawyer should already be fully familiar with his practice area such that a tool that generates the obvious isn’t needed. You know the case names. You’ve used them a thousand times in prior papers. You know the routine arguments for and against and could draft the suckers into a serviceable memo in your sleep."  He concluded, "This is what I fear Compose is most likely to be used for, a quick and easy crutch for the terminally lazy."

Please look at Compose and judge for yourself.  But, from my viewpoint, it is a dangerous tool for both lawyers and law students.

(Scott Fruehwald)

“Success is no accident. It is hard work, perseverance, learning, studying, sacrifice and most of all, love of what you are doing or learning to do.” Pelé, Brazilian football legend.

“If you work hard enough and assert yourself, and use your mind and imagination, you can shape the world to your desires.” – Malcolm Gladwell, author.

“I do not know anyone who has got to the top without hard work. That is the recipe. It will not always get you to the top, but it should get you pretty near.” – Margaret Thatcher, former British Prime Minister.

“The dictionary is the only place that success comes before work. Work is the key to success, and hard work can help you accomplish anything.” – Vince Lombardi, American football coach.

"There are no shortcuts to any place worth going." Beverly Sills

"When it comes to success, there are no shortcuts." Robert Foster Bennett

"If you do the work you get rewarded. There are no shortcuts in life." Michael Jordan

"Every shortcut has a price usually greater than the reward."Bryant H. McGill

"Those that spend the most effort in search of shortcuts are often the most disappointed and the least successful."Seth Godin

Professor Daniel Kahneman has written, “[t]hose who avoid the sin of intellectual sloth could be called ‘engaged.’ They are more alert, more intellectually active, less willing to be satisfied with superficially attractive answers, more skeptical about their intuitions.” In contrast, lazy thinkers are characterized by “a reluctance to invest more effort than is strictly necessary.”

February 28, 2020 | Permalink | Comments (0)

Thursday, February 27, 2020

Toward A Mission-Based Ranking? by Chris Guthrie

Here is an innovative approach to law school rankings:

Toward A Mission-Based Ranking? by Chris Guthrie.

Abstract:

"Law schools exist to generate knowledge about law and the legal system and to prepare students for entry into the profession. Law school rankings, in turn, should evaluate schools on their success in carrying out this two-part mission."

(Scott Fruehwald)

February 27, 2020 | Permalink | Comments (0)

Saturday, February 22, 2020

Critical Thinking and the Law School Socratic Method

I have received a couple of emails asking how I can claim in my critical thinking book (here) that law schools do not systematically teach critical thinking considering that law schools use the Socratic method.  The problem is that the Socratic method, as it is currently used in law schools, teaches deriving doctrine from cases and understanding that doctrine, not critical thinking.  For example, Professor Deborah Merritt has argued:

"The case method is legal education’s signature pedagogy. Law professors point to the method with pride, and that pride has considerable foundation. In theory, the case method accomplishes at least five pedagogic goals:

  1. It demonstrates that law is not static; law evolves through judicial interpretation. On some topics, students also see how the law evolves through legislation and administrative regulations.
  2. It teaches students how to read and synthesize judicial interpretations. Depending on the subject, students also learn how to read statutes and harmonize them with judicial opinions.
  3. It prepares students to advocate for changes in the law–primarily in the courts, but with some approaches that can be used with legislators and other decision-makers.
  4. It develops critical thinking skills (careful reading, analogical reasoning, identification of patterns and distinctions) that are transferable to many other contexts.
  5. It instructs students on the doctrinal principles discussed in the cases and accompanying statutes.

Can the case method accomplish all of these goals–especially when it is used in a large classroom with a single end-of-semester exam? I doubt that the method ever achieved as much as it claims, except perhaps for the highest achieving students in a classroom. Today, the method has been quietly subverted to accomplish primarily the fifth goal: instructing students on doctrinal principles. Law schools stake their value on teaching the other four cognitive skills listed above, but we deliver less of that learning than we believe."  (here)  Similarly, Professor Jessica Erickson has asserted, "The Socratic classroom has turned into a 'soft Socratic' space."  (here)

The other problem is that most academics don't know what critical thinking actually means; they use it in a general, vague sense.   Scholars who study critical thinking have defined what it means and what thinking processes it comprises.  Here are two good definitions: Critical thinking is “[t]he intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.”  (here)  “It is . . . automatically questioning if the information presented is factual, reliable, evidence‑based, and unbiased.” (here)  Critical thinking is a set of processes, including metacognition, conceptualizing, synthesizing (constructing), asking questions, organizing, developing and evaluating alternatives, considering unintended results, planning, self-monitoring, reflection, spotting assumptions, evaluating inferences, exercising epistemic vigilance, supporting arguments with evidence, evaluation, skepticism, and self-direction.

As I show in my book, the Socratic method can be used to teach critical thinking systematically.  But as Professors Merritt and Erickson have asserted, as it is currently used in law school, it does not do this.

(Scott Fruehwald)

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February 22, 2020 | Permalink | Comments (1)

Leveraging Noncognitive Skills to Foster Bar Exam Success: An Analysis of the Efficacy of the Bar Passage Program at FIU Law

I have posted frequently on the great success that Florida International University graduates have had on the Florida bar exam.  It seems like every time the results come out they are at the top.  Now, the ABA has published a list of Law School Rankings By Bar Exam Overperformance,  and guess who came out number one nationally?  Georgia.  But FIU was number two.

Raul Ruiz, Assistant Professor of Academic Support at FIU, has posted an article on SSRN explaining some of the reasons for FIU's great success on the Florida bar exam: Leveraging Noncognitive Skills to Foster Bar Exam Success: An Analysis of the Efficacy of the Bar Passage Program at FIU Law.

Abstract

"With falling bar exam passage rates, many law schools have implemented bar exam preparation programs but are still struggling to improve bar exam passage rates. The increase in law school matriculants with LSAT scores below 150 had a statistically significant negative correlation with national mean MBE scores, and with the new ABA standard 316 mandating a 75% bar passage rate, law schools are facing mounting pressure to ensure that their graduates are ready and able to pass their bar examination expeditiously or risk losing ABA accreditation.

Law schools have been frustrated by the lack of results with their internal bar exam preparation programs. They often struggle to identify why their students continue to fail the bar exam. Not much has been written about the theory, design, implementation, and evaluation of an effective law school bar exam preparation program. This paper will discuss each of those areas with the goal of helping law schools achieve an important milestone: increasing bar passage rates for their students and maintaining ABA accreditation.

This paper will discuss what has caused a decrease in bar exam scores nationwide and how the bar preparation program at the FIU College of Law has counteracted declining pass rates. The focus of the bar prep program at FIU will be discussed in detail, so other law schools may utilize those same concepts."

Congratulations to Georgia, FIU,  and the other law schools that placed at the top of the overperformance list.  Maybe someone at Georgia will write an article on how they did it.

(Scott Fruehwald)

February 22, 2020 | Permalink | Comments (0)

Monday, February 17, 2020

Communicating Explanatory Synthesis by Michael D. Murray

Communicating Explanatory Synthesis by Michael D. Murray.

Abstract

The T-R-E-A-T paradigm and the doctrine of explanatory synthesis are both organizational methodologies and substantive theories designed to improve the substance of legal writing. The TREAT paradigm doctrine holds that the presentation of legal discourse in a carefully constructed order not only promotes clarity and satisfies audience expectations but also maximizes the communicative potential and persuasiveness of the substance of the material.

Explanatory synthesis (the “E” of TREAT) improves the substance of legal writing by combining precedents and revealing the factors and policies that determine the outcome of these precedents. Explanatory synthesis follows the path of inductive reasoning through exploration of the species of situations where a given legal rule has been applied to produce a concrete outcome (i.e., the cases), and derives the genera of principles of interpretation and application of the rule that can be presented in legal writing.

(Scott Fruehwald)

February 17, 2020 | Permalink | Comments (0)

Wednesday, February 12, 2020

Fate of Boise law school uncertain in light of Concordia U. closure

The fate of the recently ABA accredited Concordia University School of Law in Boise is uncertain after its parent school announced it would be closing the main campus in Portland, Oregon after 115 years. The law school's interim dean said she's been in discussions with "multiple institutions" about possibly taking over the law school but so far nothing concrete has emerged. At present, Concordia law school has about 150 students enrolled according to its website.  More details about the closure of Concordia University and the fate of the law school are available from the Idaho Business Review:

Concordia University in Portland to close; fate of downtown Boise law school unclear

 

Concordia University in Portland announced Monday that is shutting down its Portland campus after 115 years, though its leaders say they are in discussions to keep the School of Law in Boise operating.

 

In an interview with the Idaho Statesman, interim Concordia Law School Dean Latonia Haney Keith said leaders are talking with “multiple institutions” interested in taking over the law school. She said she could not publicly identify the schools.

 

But the University of Idaho is not among them. The U of I law school dean said he didn’t know Concordia Law’s future was in doubt until an Idaho Statesman reporter called seeking comment. The U of I operates a Boise branch of its law school in the former Ada County Courthouse.

 

“We have reached out to institutions that we thought have a mission alignment with us and our core values that really believe in what we’re doing here in Idaho,” Haney Keith said. “We’re hoping to be able to give more information in the next couple of weeks.”

 

School officials met with students to let them know about the situation before a public announcement was made at 11:15 a.m.

 

“We’ve asked for their patience as we work through this ,” said Keith, who has worked for the law school since 2015 and was named interim dean in August. “We will be meeting with them regularly and be as transparent as we possibly can throughout this process. But we want them to be really focused on their education.”

 

. . . . 

Continue reading here.

(jbl).

 

February 12, 2020 | Permalink | Comments (0)

Saturday, February 8, 2020

The Real Dangers of Cognitive Biases

I have written often, here and elsewhere, about the dangers of cognitive biases on lawyers and their clients.  Such dangers also exist in the every day world, sometimes with tragic consequences.

There is a story in the New York Post about a four-year-old boy who died from the flu when his mother ignored her physician's advice in favor of advice from an anti-vaccine group on Facebook.

Excerpts:

"The mother of a Colorado preschooler who died from the flu ignored a doctor’s prescription and tried alternative, 'natural' methods recommended in an anti-vaccine Facebook group, according to reports.

The mother of the boy posted on a Facebook group — called “Stop Mandatory Vaccination” — that two of her four children had been diagnosed with the flu, leading a doctor to prescribe Tamiflu antiviral medication for the entire household, NBC News reports.

A third child — the woman’s 4-year-old son, who later died — had not been diagnosed with the flu at the time, but showed symptoms of a fever and had a seizure. Nevertheless, she ignored the doctor’s orders, she wrote.

'The doc prescribed tamaflu (sic) I did not pick it up,' the Facebook post read."

"Some of the suggestions she received included using breast milk, thyme and elderberry — all of which are not recommended by doctors to treat influenza. . ."

"Najee’s mother, meanwhile, told the station she feels as if she 'failed' her son."

This is a tragic story.  The mother wanted to do the best for her child.  How could she ignore her doctor's advice, instead using folk remedies from a Facebook Group?  Cognitive biases clouded her judgment.

Here are the cognitive biases that affected the parent's decision and the Facebook member's suggestions:

Confirmation bias: “The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.”

Optimism bias: “The tendency to be over-optimistic, overestimating favorable and pleasing outcomes.”

Ostrich effect: “Ignoring an obvious (negative) situation.”

Semmelweis reflex: “The tendency to reject new evidence that contradicts a paradigm.”

There is no simple answer to the problem of overcoming cognitive biases.  However, studies have shown that awareness of cognitive biases and other approaches can help significantly.  One other thing can help: never ignore your physician's advice.  If you don't like what your doctor is saying, go to another doctor.  But, never, never take medical advice from a group on the internet.

(Scott Fruehwald)

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February 8, 2020 | Permalink | Comments (0)

Friday, February 7, 2020

How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why

Here is the table of contents to my new book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why:

Table of Contents

Preface v
1. Legal Education and Critical Thinking 1
2. Understanding Critical Thinking 13
3. The Domain-Specific Characteristics of the Law 45
4. Teaching Critical Thinking in Law School 71
5. Critical Thinking and the Socratic Method
as a Teaching`Technique in Legal Education 107
6. How to Improve Your Teaching with Critical Thinking 121
7. Teaching Critical Thinking in Legal Writing 133
8. Judges and Critical Thinking 143
9. Conclusion 157
Appendix A: Sample Socratic Dialogue 163
Appendix B: Sample Socratic Dialogue 177

(Scott Fruehwald)

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February 7, 2020 | Permalink | Comments (0)

Wednesday, February 5, 2020

Registration is now open for Emory University School of Law's 7th biennial transactional legal skills conference June 5-6, 2020

The organizers of Emory's biennial transactional legal skills conference wanted our readers to know that registration for the June 5th to 6th conference is now open and the link, plus full details, are below. 

CALL FOR PROPOSALS AND REGISTRATION INFORMATION

 

Emory’s Center for Transactional Law and Practice is delighted to announce its seventh biennial conference on the teaching of transactional law and skills.  The conference, entitled Hindsight, Insight, and Foresight:  Transactional Law and Skills Education in the 2020s,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, June 5, 2020, and ending at 3:45 p.m. on Saturday, June 6, 2020.

Come together with your colleagues and friends in Atlanta to reflect upon transactional law and skills education and ponder the answers to three vital questions:

 

  • Where have we been?
  • What have we learned?
  • Where are we going?

Our keynote speaker – to be announced soon – will elaborate on our theme.  In addition, conference attendees will participate in a workshop to create a vision for transactional law and skills education in the 2020s (the “Vision Workshop”).  Finally, we will bestow the second Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills.  (For information about how to nominate yourself or someone else for this award, please click here.

 

CALL FOR PROPOSALS

 

We are accepting proposals immediately, but in no event later than 5 p.m. on Friday, March 20, 2020. 

We welcome you to present on any aspect of transactional law and skills education as long as you view it through the lens of our theme.  For example, if you present about a course, curriculum, or program, tell us how it’s worked, what you’ve learned, and how you envision it evolving over time.  Alternatively, you may want to focus on just one of the three questions.  For example, if you present a “Try-This” session, you may want to examine what you have learned from teaching the exercise a number of times – and even from preparing to teach it to your colleagues. 

 

We also welcome proposals that address the big picture.  Maybe you have a scheme to address the legal education system’s tendency to value litigation skills training above transactional skills training.  Perhaps you have experience moving a law school faculty and administration to give transactional law and skills education the attention it deserves.  Or maybe you believe that riding the wave of the future means teaching students particular topics or skills – such as how to be a leader or how to use technology.

 

Try-This Sessions.  Each Friday afternoon “Try-This Session” will be 45-minutes long and will feature one classroom activity and one individual presenter.

 

Panels.  Each Saturday session, except for one hour devoted to the Vision Workshop, will be approximately 90 minutes long and feature a panel presenting two or more topics grouped together for synergy. 

 

Please submit the proposal form electronically via the Emory Law website found here before 5 p.m. on March 20, 2020. 

 

PUBLICATION OF SELECTED MATERIALS

 

As in prior years, some of the conference proceedings as well as the materials distributed by the speakers will be published in Transactions:  The Tennessee Journal of Business Law, a publication of the Clayton Center for Entrepreneurial Law of The University of Tennessee, a co-sponsor of the conference.

 

CONFERENCE REGISTRATION

Both attendees and presenters must register for the Conference and pay the appropriate registration fee:  $250 (general); $200 (adjunct professor and new professor).  Note: A new professor is someone in their first three years of teaching.

 

The registration fee includes a pre-conference lunch beginning at 11:30 a.m., snacks, and a reception on June 5, and breakfast, lunch, and snacks on June 6. We are planning an optional Thursday evening reception (June 4) and Friday evening dinner (June 5) at an additional cost of $60 per person for the dinner.

 

Registration is now open for the Conference and the optional events here.

 

TRAVEL ARRANGEMENTS AND HOTEL ACCOMMODATIONS

Attendees and presenters are responsible for their own travel arrangements and hotel accommodations. Special hotel rates for conference participants are available at the Emory Conference Center Hotel, less than one mile from the conference site at Emory Law. Subject to availability, rates are $159 per night. Free shuttle transportation will be provided between the Emory Conference Center Hotel and Emory Law.

 

To make a reservation at the special conference rate, call the Emory Conference Center Hotel at 800.933.6679 and mention “The Emory Law Transactional Conference.” Note: The hotel’s special conference rate expires at the end of the day on Thursday, May 14, 2020.  If you encounter any technical difficulties in submitting your proposal or in registering online, please contact Kelli Pittman, Program Coordinator, at kelli.pittman@emory.edu or 404.727.3382.

 

We look forward to seeing you in June!

Sue Payne                          Katherine Koops                  Kelli Pittman

Executive Director                Assistant Director                 Program Coordinator

(jbl).

February 5, 2020 | Permalink | Comments (0)

Book Announcement: How to Teach Lawyers, Judges, and Law Students Critical Thinking

Today begins a new day for legal education.  It is the begininng of the systematic teaching of critical thinking in legal education.

How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why by E. Scott Fruehwald.

Critical thinking is essential for lawyers, judges, and law students. Yet law schools have never systematically taught critical thinking to their students. The main purpose of this book is to help law professors teach lawyers, judges, and law students how to become critical thinkers. It first explains critical thinking to professors, and, then, it shows how they can teach this knowledge to students. Lawyers, judges, and law students can also use this book to teach themselves critical thinking.

Chapter One introduces the reader to the need for critical thinking in the law, and it will give two methods of evaluating how critical thinking works within legal education. Chapter Two helps the reader understand the basics of critical thinking. Most scholars think that critical thinking is domain specific, so Chapter Three presents the domain of the law. Chapter Four applies critical thinking basics to law’s domain, and it shows how to teach critical thinking to lawyers, judges, and law students. Chapter Five shows how critical thinking processes can improve the use of the Socratic method in legal education. Chapter Six discusses how critical thinking can make law professors better teachers. Chapter Seven demonstrates how critical thinking can produce better legal writing professors. Chapter Eight focuses on judges and critical thinking. The final chapter brings everything together and highlights the most important aspects of teaching critical thinking to lawyers, judges, and law students. Two appendices contain sample Socratic dialogues that employ critical thinking. I have included examples, exercises, and problems on critical thinking throughout the book.

(Scott Fruehwald)

February 5, 2020 | Permalink | Comments (0)