Legal Skills Prof Blog

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin

Here is an excellent article on behavioral legal ethics and legal negotiations:

Behavioral Ethics, Deception, and Legal Negotiation by Russell B. Korobkin.

Abstract

"Research in the field of behavioral ethics finds that much unethical behavior is not the result of conscious amorality. Rather, cognitive and motivational biases enable and even encourage people who consider themselves to be pro-social to act badly without ever recognizing the shortcomings of their behavior. This Article, delivered as the annual Chris Beecroft, Jr. Memorial Lecture on Dispute Resolution at the UNLV Boyd School of Law, explores how the findings of behavioral ethics can help to better understand, predict, and potentially combat unethical behavior in legal negotiation. Its admittedly pessimistic conclusion is that legal negotiation is an activity that is likely to be rife with behavior that is unethical, or at least presses hard against ethical boundaries.

The Article summarizes the core findings of behavioral ethics research, explains why this research suggests that deceptive behavior will be common in negotiation, argues that the agency role played by lawyers in legal negotiation likely also encourages unethical behavior, and, finally, propose steps that lawmakers or negotiators themselves might take to reduce the amount of deceptive behavior in legal negotiation.'

Behavioral legal ethics has become a key topic in the legal ethics field.  Korobin says this about BLE:

"This Article contributes to this literature by viewing legal negotiation through the lens of social science research in the field of 'behavioral ethics.' The core finding of body of research is that much unethical behavior is not attributable to the classic Holmesian 'bad man,' who is consciously amoral—that is, interested only in his own gratification and completely unconcerned with the interests of other individuals or societal norms and expectations. Rather, cognitive and motivational biases often enable and even encourage people who care about other individuals and society more generally, rather than just themselves, to act in ways neutral observers would view as unethical, without ever recognizing their behavior as such."

(Scott Fruehwald)

Legal Writing as a Discipline: Past, Present, and Future by Jan M. Levine

As new legal writing professors enter the profession, they need to know about the history of the legal writing movement.  This movement has had a tremendous impact on legal education and preparing lawyers for the 21st Century.  Here is a chapter from the ABA Legal Writing Sourcebook, 3rd ed. on the history of legal writing in the academy:

Legal Writing as a Discipline: Past, Present, and Future by Jan M. Levine.

Abstract:

"Legal research and legal writing, particularly for persuasive purposes, have been a part of a lawyer’s stock in trade at least as far back as ancient Greece and Rome.46 But that history has not always been marked by laudable achievements. The written work of English lawyers was often ridiculed as obtuse, obfuscatory, and unintelligible. Unfortunately, American lawyers, in their turn, have received much of the same ridicule.Only in the past four decades has legal education in America devoted much attention to professional training in legal writing."

(Scott Fruehwald)

AALS President Darby Dickerson: Promoting Candor with Critical Thinking

Darby Dickerson has made the power of words her theme for her year as President of AALS.  (here)  In her column in the Spring 2020 AALS News, she writes about Promoting Candor.

She declares, "'Candor' refers to being open and honest, or forthright. Candor has traditionally been central to the legal profession. The Model Rules of Professional Conduct, for example, call for lawyers to 'render candid advice,' exhibit candor toward the tribunal, avoid making false statements of material fact or law to a third person; and, if serving as prosecutors, disclose exculpatory evidence. Candor helps the legal profession earn public trust. It helps us to pursue justice. But the value of candor seems to be eroding, especially in the face of ubiquitous spin control."

She continues, "Because law schools start teaching persuasive techniques in the first year, faculty should develop and use techniques to teach students the value of candor and help them find the line between acceptable persuasion—when an advocate argues zealously, accurately, and honestly for the client—and tactics that can harm their clients, the judicial system, and the profession."

Dean Dickerson next discusses ideas to promote candor: modeling candor in our classrooms, welcoming diverse perspectives, encouraging students to be curious and ask questions, discussing spin and deceptive techniques, incorporating ethical issues into assignments, adding courses on data and statistics to the law school curriculum, teaching information literacy, and doubling down on critical thinking.

Concerning critical thinking she writes, "Professors must ensure that they are teaching students to think critically. Critical thinking is deep thinking that helps us question whether information presented is reliable, fact-based, evidence-based, and unbiased. In February 2020, Scott Fruehwald released How Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton Asked Why. In that book, he reminds us that critical thinking can help overcome superficial and biased thinking; help determine when more information is needed; help understand multiple perspectives; and help recognize manipulation. Consequently, helping students master critical thinking is a powerful tool to promote candor."

I am very happy that Dean Dickerson stresses critical thinking as an important part of the law school curriculum, and I thank her for mentioning my book.  True critical thinking is not generally a part of law school teaching, but it needs to be.  I urge all law school professors to incorporate critical thinking into their classes.  Once you understand what critical thinking is, incorporating it is not hard.  It is more like developing a good habit than anything else.

(Scott Fruehwald)

Teaching Legal Analysis: A Tale from the Front by Charles Splawn

Here is an excellent article on how to teach legal analysis:

Teaching Legal Analysis: A Tale from the Front by Charles Splawn.

"Legal analysis is the foundational skill of lawyering, and it is at least part of what captivated us as law students. But because legal analysis is as much art as science, explaining it—now as teachers—can be a somewhat elusive process. Inspired by a colleague’s simple but effective presentation at a conference I attended four years ago, and armed with a great textbook, I have embarked on a teaching journey that has been remarkably fulfilling—for my students and for me.

While the specific approach I have developed is not earth-shattering, it nonetheless offers some solid techniques and addresses some of the difficulties in cultivating singular focus and intense scrutiny in our millennial law students. I hope that sharing my teaching experience will be helpful to those charged with the task of teaching legal analysis. I note also that the principles explored herein could fruitfully be applied in other contexts. For instance, an abbreviated series of legal analysis exercises deployed in a pre-1L program could provide a wonderful foundation for more effective 1L learning. Similarly, the course content I describe below could be parceled out in academic support workshops or one-on-one meetings, giving the academic support professional a tried and true, turn-key platform to develop students’ analytical skills.

This Article will explore four key aspects of the course I have entitled “Mastering Legal Analysis.” The first key aspect is the necessity of introducing (or at least re-introducing) students to the classification of information and the examination of inferences, both of which are essentially ways of figuring out the relationship between the concepts that lurk behind our terminology. Second is the deliberate and thorough deconstruction of the process of legal analysis itself—breaking an often-inscrutable monolith into discrete, manageable tasks. Third is a summary of the overarching strategy and specific techniques by which my students are challenged to move through a wonderfully practice-oriented textbook. Finally, I describe how student engagement in this cumulative process culminates in a longish office memorandum that serves both as proof of the skills they’ve acquired and a template for the union of thinking and communication that will help them in law school, on the bar exam, and in the practice of law."

Professor Splawn stresses the explicit training of analysis, and his article includes some excellent exercises.

(Scott Fruehwald)

 

A Sneaky Peek at CSALE 2019-20: Clinical Law Faculty and Their Courses by Robert R. Kuehn

Here is a sneak peek at the The Center for the Study of Applied Legal Education (CSALE) tri-annual survey of clinical legal education.

From Robert Kuehn: "As you may know, every three years the Center for the Study of Applied Legal Education (CSALE) conducts a nationwide survey of clinical education programs, courses, and faculty. The first phase of CSALE’s 2019-20 Survey, the CSALE Master Survey, was completed in the fall by over 94% of law schools. The second phase, the CSALE Sub-Survey, seeks detailed information from law clinic and externship faculty on their courses and employment status. The blog posting shares some important results from the Master Survey about law school programs and policies and and the status of clinical faculty. CSALE will publish a detailed report on the complete CSALE 2019-20 Survey of Applied Legal Education, its fifth, in late summer."

There is a lot of important information in the "sneak" peak.  Thanks to Bob and his colleagues for doing so much hard work.

Update: I am very bothered by this sentence: "Ten percent of schools simply restructured an existing legal research and writing course to now be considered experiential." While this may satisfy the literal language of standard 303, it does not satisfy its spirit. I hope that site visit committees will take a close look at this practice with the schools they visit and that the Council will consider revising this language to prevent the practice.

(Scott Fruehwald)

Speaking the Truth: Supporting Authentic Advocacy with Professional Identity Formation by Laura A. Webb

Professional identity training is essential to producing an effective lawyer, who can serve his or her clients and society.  Here is an excellent article on professional identity formation.

Speaking the Truth: Supporting Authentic Advocacy with Professional Identity Formation by Laura A. Webb

Abstract

"When law students are asked to articulate legal rules in a persuasive communication such as a brief, they may experience internal tension. Their version of the rule, as framed to benefit a particular client’s position, may be different from the way they would articulate the rule if they were not taking on an advocate’s role. The conflict between those two versions of a legal rule leads some students to wonder if advocacy itself is deceptive, if an advocate’s role requires one to sacrifice ethics for success, and if ancient Greek philosophers were correct when they derided persuasive communication as “trickery and magic,” and criticized advocates for making arguments that were “artfully written but not truthfully meant.” This tension is not unique to students. All advocates must ask themselves whether they can provide a true and accurate version of the law (truthful law) and simultaneously articulate a version of the law that will help their clients. This question speaks to the very nature of law and what it means to be a lawyer. If the question is not successfully resolved, students and lawyers are more susceptible to the cynicism and discontent that permeates the legal profession.

Using Plato’s denunciation of rhetoric and rhetoricians as a starting point, Part I of this Article will explore how the first year of law school may create and exacerbate tension between law students’ desire to advocate on behalf of their clients and their desire to truthfully communicate the law. Part II will explore how law school could resolve this tension with an explicit discussion of legal determinacy and the lawyer’s role in creating law: what students need to hear, when they need to hear it, and where that conversation might be placed within the curriculum. The Article will identify the developing area of professional identity formation as a natural location for an effective discussion, which would ideally occur within the first year of studies. In that discussion, law students can explore a view of lawyers as meaning-makers and truth-tellers: rhetoricians who understand and are faithful to the true essence of a law but are also able to create alternatives within the scope of that true law. Students and lawyers can integrate their own identities into this professional identity, and maintain authenticity in their advocacy."

(Scott Fruehwald)

That Does Not Compute, President Winick

When I was a little kid, my friends and I loved "Lost in Space."  Our favorite line was "That Does Not Compute, Dr. Smith," which the robot said whenever Dr. Smith said anything illogical.

Mitchel L. Winick (President & Dean, Monterey College of Law) has made a similar illogical statement in an article on the recent abysmal California bar exam results.  TaxProf Blog op-ed:  Occam’s Razor: The Broken California Bar Exam.  In fact, the results on the February Cal. exam were the worst in history.  (here)

President Winick uses Occam's Razor to explain these terrible results.  According to Occam's Razor, the simplest solution is most likely the right one.  Winick states, "We could believe that all 40+ California law schools suddenly and inexplicably became incapable of teaching substantive bar tested subjects . . . or perhaps the California Bar Exam grading and scoring system is broken."  He continues, "Alternatively, we could believe that California law schools conspired to intentionally destroy the profession by systematically seeking out and selecting students who had little or no ability to successfully study and understand the principles of law . . . or perhaps the California Bar Exam grading and scoring system is broken.  etc., etc."  He concludes that the California bar exam is broken.

You don't need to be a computer or a PhD in logic to discern that President Winick's logic does not compute.  In trying to determine why the bar exam result was so abysmal, you look to see what input or inputs have changed.  Only one input changed; California schools on the average have been admitting students with lower and lower GPAs and LSAT scores.  (here)  Nothing else has changed.  The pass/fail cut off has not changed for many years.  Consequently, the only explanation for the February results is that California law schools on the average have been admitting weaker and weaker students.

Of course, President Winick is the president and dean of a non-ABA California law school.  Under Occam's Razor, the simplest explanation for Winick's faulty logic is that he is not a disinterested observer.

As I have stated many, many, many, many, many times before, the only way for California law schools to raise their bar pass scores without raising the quality of their students is to better educate their students using established educational techniques.  I have laid out a plan for doing so in my book, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018). Also, as I have stated many, many, many, many, many times before, FIU has produced amazing bar pass results.  (here)

Finally, maybe the California bar should look at the non-ABA accredited law schools.  Such schools had a 17% pass rate for first-time takers on the February exam and a 26% rate for last July.  Are the California accredited schools supplying value to their students and the California bar?  Of course, not all non-ABA accredited schools had such dismal results.  For example, Glendale University College of Law had a 64% pass rate for first-time takers last July.

(Scott Fruehwald) 

 

Rational Charitable Giving

In my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why, I emphasize the importance of using critical thinking in the law.  Of course, critical thinking applies to countless aspects of our lives, even ones we would never connect with critical thinking.  One of these is charitable giving.  Do you use critical thinking when you donate money to charities?

There is a new social movement called effective altruism that applies critical thinking to charitable giving.  The best introduction is a short lecture by Eric Gastfriend.  (here at 46:23).  Effective altruism is "doing the most good you can for the world given the resources you have." 68% of donors do not research the charities they give to, and only 3% give based on relative performance of the charities.  This has several results.  First, donors do not know the charities that need funds the most.  For example, heart disease charities receive only a small percentage of donations in the health charity pool, despite the fact that it is the leading cause of death.  Second, donors do not ask whether a charity is causing, not merely correlating, with positive change.  Third, donors do not know which charities are most cost-effective--which ones get the most bang for a buck.  For example, it costs $40,000 to train a guide dog.  For the same amount, third world countries can restore the vision of 1,000 people through cataract surgery.  Finally, donors do not ask whether the charity is having a positive effect.  In fact, "1) the vast majority of social programs and services have not yet been rigorously evaluated, and 2) of those that have been rigorously evaluated, most (perhaps 75% or more), including those backed by expert opinion and less-rigorous studies, turn out to produce small or no effects, and, in some cases negative effects."  (here)

Of course, many people will not have the time to do the research necessary for effective altruism.  Fortunately, others have done this with some charities.  The Life You Can Save, Effective Altruism, Give Well.

In sum, when donating to charities adopt an evidence-based mindset.

Here is another introduction to effective altruism.

(Scott Fruehwald)

A call for a virtual summit on online legal education and the importance of active learning

Former Northwestern Dean, Daniel Rodriguez, has called for a virtual summit on online legal education.  He wrote, "Bottom line, our universities and law schools may not be able to function as they did pre-March 2020. . . .  We are going to need to develop some fundamentally creative and responsible strategies to deal with this temporary new normal.  .  . .  What I want to suggest is that we would do well to convene a big summit, in a virtual form, to discuss comprehensively, tactically, and in a data-driven way, how we might deliver excellent legal education in an online format (entirely, partially, to some of our vulnerable students)."

He concluded, "We need to do something big. Fingers crossed that the fall will bring relief is not the answer. This strategic endeavor for how to maintain educational quality with fundamentally different pedagogy is a massive undertaking, one that falls squarely under the rubric of worst-case scenario contingency planning. But if we are not intentional and inclusive about this conversation, we could find our proud system of legal education imperiled, or at least knocked seriously back on its heels."

I agree with Dean Rodriguez.  If law schools must remain online this fall because of the coronavirus, they need to plan now to retain the quality of legal education.

I would like to emphasize the importance of active learning as a part of online instruction.  Active Learning: "With active learning, teachers involve their students directly in the learning process. It is the opposite of passive learning, like listening to a lecture. In the class-room, active learning can include asking students questions about what they have read, doing exercises, asking students to reflect on what they just learned, and doing collaboration exercises. Active learning while studying includes self-testing, organizing and rewriting notes, creating a class outline, and doing self-correcting exercises."  (here)  Active learning is effective because students remember more, are better able to apply the knowledge, and are better able to deal with complex problems.  (Id.)  Students who are in classes with active learning classes outperform those in traditional lectures on identical exams.  (E.g., here) My book, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students, discusses in detail which active learning techniques work well and which learning techniques don't.

Problem solving exercises are an especially good teaching tool because problem solving requires active participation (not just observation), it challenges students to develop legal skills in context rather than relying on knowing legal rules, and it facilitates self-reflective learning.  (here) You don't have to reinvent the wheel; there are a lot of good exercises out there. I particularly recommend the the Context and Practice Series from Carolina Academic Press.  (here, here)

I have written a torts exercise book, A Companion to Torts: How to Think Like a Torts Lawyer, which would work well in an online class because it includes exercises on both the micro-, medium-, and macro-level.  "This book takes a new approach to learning torts law: its goal is to teach law students to think like torts lawyers. Thinking like a lawyer means solving a problem to produce a legal solution. This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity. A torts lawyer uses these reasoning methods to solve torts problems. This book will include a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers. This book is a supplement to torts casebooks and textbooks."

Finally, law schools need to teach their students effective study techniques.  The techniques students used in high school and college, which they learned by trial and error, don't produce effective lawyers.  Effective techniques include self-testing, spaced learning, repetition, interleaving, journaling, etc.  Researchers have demonstrated that several common study techniques are ineffective, including summarization, highlighting, the keyword mnemonic, imagery use for text learning, and just rereading.  I teach students effective study techniques in detail in my book, How to Succeed in Law School.

Of course, active learning is just one of the topics that needs to covered in a summit on online legal education.  However, it is probably the most important one for the effectiveness of online education.

(Scott Fruehwald)