Monday, November 2, 2020
One of the most important goals we're all trying to accomplish in our legal skills classrooms is to impart lessons to students that they’ll retain and be able to apply to the problems they’ll later encounter in practice. It’s what cognitive scientists refer to as “transferability.” For example, when I teach research skills in my legal writing class, my goal is to not just help students find the cases they need for the office memo assignment of the moment, I also want them to learn a method and process to help them solve the unique research problems they'll face as attorneys.
Thus, the way I teach LRW skills is informed by the goal of transferability. I want students to learn both the mechanical steps involved in, for example, formulating Boolean search strings and selecting the right databases, and also the cognitive habits of an expert researcher who develops the mental protocols and checklists needed to ensure they haven’t missed anything.
One of the pitfalls of putting experts in charge of teaching neophytes is that we may forget to make explicit some of the steps involved in performing a particular skill because they have become so internalized and second nature to us due to our status as experts yet our students don't share the same assumptions. In other words, we assume what is “common sense” to us because of our expertise will also be common sense to our students. Consequently, one aspect of my teaching that I’m always trying to improve is to become more self-aware of the assumptions I’m making that aren’t yet “common sense” for my students. For instance, early in my teaching career I realized that lawyers and students understand the process of self-editing differently. When a lawyer edits her own writing, she’ll revisit and question every aspect of it including large scale organization, small scale organization, word choice, citation form, and most importantly the theories advanced and the substantive ideas expressed. Many law students, on the other hand, understand the editing process in a totally different way. They tend to approach it much more superficially by changing a word here and there or correcting typos. So my job is to more explicitly describe what I mean when I tell students to edit their written work including providing concrete examples of how an expert approaches the task.
But despite having worked hard to become more self-aware about how I may be inadvertently making assumptions about what is, and what is not, “common sense” to my students, every once in a while I still have one of those mini epiphanies where I recognize that something that I thought was self-evident to students, might not be so.
A case in point; I often use brief quizzes in class to more actively engage students in the material. For example, I’ll give a quiz (or sometimes multiple quizzes in a single class, carefully sequenced) about aspects of legal research, writing their memo assignments, citation form, or whatever topic of the moment I want to better reinforce. After administering the quiz(s), we’ll then go over it together focusing on the points I want students to take away from the exercise. Just recently I gave students a quiz on citations based on the most common errors I’ve seen in the past as a way of heading off students making those same mistakes again this time around (i.e. mechanical stuff like underlining case names but not statutes, using string cites in the thesis paragraphs but not in “application,” etc.).
Of course I have always assumed that students understand that the point of these quizzes is not for me to create make-work for them but instead to help embed the lessons I want them to apply generally in the course moving forward. That’s common sense, right? Well, it recently occurred to me that even though it seems like that should be the case, maybe it isn’t for some students. So I decided to include a couple of questions in my most recent quiz on avoiding common citation errors to make that expectation more explicit for the pending office memo assignment. I even added a soupcon of humor figuring that might make the lesson “stickier” if only because it makes it more memorable. To wit, I added the following questions at the end of the quiz:
Question # 10
A. The point of this exercise is (choose the correct answer):
i. To forget the answers as soon as you’ve finished.
ii. Apply what you learned about citation placement and form to every assignment in this course moving forward.
B. If you don’t apply the lessons learned from this quiz to memo assignment # 1 (choose the correct answer):
i. Your professor will be so happy and proud.
ii. Your professor will become sad, despondent, and question the very meaning and purpose of his life.
By now, I’ve finished grading the office memo assignments to which this quiz related. As the quiz prophetically suggested, I’m now sad, despondent, and questioning the very meaning and purpose of my life. That’s because even though the vast majority of students got most of the quiz questions correct (it was a take-home, open book quiz that they had 24 hours to complete which I reviewed with them in class afterward), they didn’t transfer the knowledge gained to the office memo assignment I just finished grading (where maybe half the class incorrectly underlined statutes or failed to use string cites as instructed). Heck, 5 to 10% of the class even got Question 10(B) wrong!
I’m not sure what to try next to improve transferability. But this experience is a reminder to me that despite having devoted nearly 24 years trying to become a better teacher including reading and publishing quite a bit about law school pedagogy, attending numerous teaching conferences, presenting at those conferences, having the benefit of new-fangled teaching theories and loads of empirical work, as well as being able to leverage the expertise of relevant fields like cognitive science, the most insightful thing I’ve yet read about law school teaching remains an article from 1948 that I read at the start of my teaching career almost 24 years ago: Lighthouse No Good by Professor William L. Prosser. It’s now 2020 and despite all the advancements in law school pedagogy and the kind of classroom technology available to us that Prosser could never have dreamed of, it seems to still be the case, just as he observed more than 80 years ago, that no matter what we do as teachers, the fog keeps coming in just the same.