CELL Blog | Center for Engaged Learning in the Law

As we know, “thinking like a lawyer” really means “analyzing complex law and facts in a concise, precise and organized way…. IN WRITING.”

When a guest speaker came to speak to all our first year students yesterday, he said that too many new lawyers don’t know to write.

What can we do to provide more opportunities to learn how to write well?

To help students learn to write, I often give them exercises to write in class or in preparation for class. Sometimes I’d have the students exchange papers with each other to read someone else’s perspective, and then I’d collect, comment and return.

This semester in Remedies I am trying something new – teaching students in teams. As part of that approach, students see many examples of each other’s work. Seeing each others’ writing has had remarkable and unanticipated beneficial consequences.

1. Immediacy. Feedback for students is crucial, and the sooner it is received the better. When students bring an assignment to class, and then immediately review their classmates’ writing, they get immediate feedback.The problem is fresh, they can appreciate others’ perspectives.

2. Modeling. The first time we did this, a few students did a terrific job. The second time students had to bring a written assignment to class they had the advantage of having seen high quality work, and most students performed at a higher level.

3. Efficiency. Because students had copies of each others’ writings, I could give feedback by suggesting they look at their classmates’ work. I could direct them to “look at Nathan’s work” and they could compare it to their own rather than reading my notes about what they could do differently.

4. Self-awareness. Mining their classmates’ responses to solving the same problem also showed students specific areas where they could improve. Every student had something of value in his or her writing that no one else had. During the class and small group discussions where they read writings from the class, students commented on what they learned from reading their classmates’ work.

5. Connection to practice. Even though I teach a legal writing course regularly, I was struck by how powerful it was for students to see each others’ work. Third year students commented how rarely this happened in law school, and how valuable it was for them to see the way someone else organized legal points and wove in policy arguments. This is, after all, what we do in practice.

Ingredients:

1. Written problem handed out in advance (have all students work on the same problem)
2. Clear directions for responding to problem

Steps:

1. Assign all students to prepare a written analysis of a problem.
2. Ask them to bring copies to class (or give you electronic or hard copy beforehand).
3. Compile, copy and distribute.
4. Give students time to read and discuss (in small groups). What would they include in the best written analysis?
5. Listen to discussion.

Not too long ago, in the 20th Century, the concept of “curriculum” was fairly determinate — it was the substantive law taught within the confines of each course. A teacher’s job was to cover material, meaning the substantive rules and principles of the subject, primarily through cases and case analysis. In the 21st Century, with growing criticism about a legal education that treats law school as a cognitive training ground, teaching students to “think,” but not necessarily act, like lawyers, there has been a push for expanding the goals of legal education.

One of the first places to start the expansion is the curriculum. It may be useful to first expand the goals of each course through a broader understanding of the term “curriculum.” That term could mean more than substantive law and include processes, skills and values. If processes, such as problem solving or essay writing organization, skills, such as critical reading, and values, such as effective preparation, are all important to lawyering, they ought to be central to most law school courses as well. Instead of playing a secondary or inexplicit background role, processes, skills and values should be given class time — and a defined place in the evaluation of students.

— Steve Friedland

The course was 10 days long. On day one, 20-page packets – each page single-sided – were distributed to 107 students. On day two, 90-page spiral notebooks were distributed to the same 107 students. On day three, another 20-page, single-sided packet is distributed, along with a one-page schedule and a one-page description of group work. Additional distributions included 40-page packets (give or take 10 pages but also single-sided); one-page group exercise instructions; multi-page group exercise instructions; and, of course, a mountain of case law for the final paper, which, not surprisingly, was printed single-sided.

That tallies to approximately 19,000 sheets of paper used by a single law school in one 10-day course. That’s 1,900 sheets per day just for that class.
The point? Law school uses (and some might argue wastes) a LOT of paper, which, in turn, uses a lot of trees and a lot of money.

But it doesn’t have to… We live in a digital age where nearly anything that can be done on paper can also be done on computer, meaning there are fewer and fewer legitimate reasons to continue using paper in the current manner and at the current rates. Of course, the familiarity of having the document in front of us makes a total switch to computerized formats a bit jarring; however, this is the modern trend, and it is also the trend lightest on the budget and easiest on the planet. Therefore, implementing and encouraging widespread compliance with these policies benefits everyone in the end. The sooner we start, the better off everyone will be.

Realizing the following suggestions will be more or less relevant depending on the given school, here are a few simple ways to reduce the amount of paper (and money) consumed by law schools:

– Avoid printing altogether, opting for posting/emailing online whenever possible;
– Consider online submissions of information, or CD-ROM submissions of papers, etc…
– When online submissions are used, leave them online (i.e. don’t print them);
– Print double-sided;
– Implement one-page, comprehensive attendance sheets;
– Have groups share printed information rather than each member having his/her own;
– Assign cases on Westlaw/Lexis rather than in books or via printing where possible;
– Encourage students to download cases to Word, highlighting and note-taking on-screen rather than printing;
– Avoid duplicating online materials in the form of hand-outs

Those institutions feeling a bit more ambitious could release the inventory/budgetary information regarding paper usage and begin a school-wide movement to reduce those numbers. In other words, make a competition out of the practice of fiscal and environmental responsibility.
Nothing about this speaks to the more traditional aspects of leadership and legal education. However, if law school seeks to create more than just lawyers – if it seeks to create leaders, as mine does – and if fiscal and environmental responsibility are considered part of such leadership, then it is incumbent upon those law schools to implement policies aimed at reducing the footprint they leave on the budget and on the planet.

I’ve offered to work on teaching with four colleagues who are in their first or second year at Gonzaga. After getting to know them Fall semester (I’ve been gone from Gonzaga for three years), visiting each of their classes, and debriefing those visits, I sent each of them this invitation:

Would you like to engage in any of the following development activities?

1.Your assessment of strengths, weaknesses, new approaches you would like to try
2.Complete the student evaluation form for your own courses
3.Locate teaching and learning resources (Books, Videos, Articles)
4.Review of Fall 2007 student evaluations
5.Class visits
a.Others view your class
b.You view others’ classes
6.Gathering formative feedback from students in Spring semester
7.Consulting with peers
8.Teaching journal
9.Videotape of your class
10. Other development activities that appeal to you…

Their reactions were interesting. Two thanked me for the offer and set up meetings with me to engage in teaching development activities during Spring semester. (We have met several times since and are pursuing several types of development activities.) One expressed interest but worried about how we would find the time to do this. (Subsequently, we decided to gather feedback from students next week.) One sent an email message within five minutes of receiving the invitation – “Did you hear bad things about my courses?” (I had not, which that teacher was very relieved to hear. I have not heard from the teacher since then. Should I follow up?)

Having just read Gerry Hess’ “Collaborative Course Design: Not My Course, Not Their Course, But Our Course” __ Washburn L.J. __ (forthcoming Spring 2008), an article I wholeheartedly recommend, I decided to try the idea in my Contracts II and Remedies classes. The basic idea is to engage students in deciding: their expectations of each other, their expectations of the professor, the teaching methods to be used in the class, the sub-topics to be covered (i.e., if you cannot cover all of remedies law, which topics are most important to the students), and the method(s) by which students will be assessed. This approach demonstrates respect for law students’ status as adults and provides “autonomy support,” which helps limit the law student distress Larry Krieger’s research suggests is so prevalent among law students.

I must admit some trepidation on each day. What if they said they wanted their grades to rest on a series of coin flips? What if their only expectations of each other were to stay awake?
Fortunately, for the most part, things went well. First, as I have noticed whenever I have worked with focus groups of students at the various law schools with which I have consulted on teaching, students want feedback and multiple assessments. My Contracts II students chose to have two graded mid-semester assignments in addition to their final exam. Around half also wanted to be graded on their presentations of doctrine (at the beginning of each class session in Contracts I and II, I have two students come to the front of the room and review and summarize the knowledge and skills we addressed in the previous class session—students use review hypos, PowerPoint slides, graphic organizers, etc. to make their points). My remedies students, those supposedly jaded folks only interested in getting out of law school, chose six short assignments in addition to the final; the first three will be only for practice and feedback, and the last three will each be for a grade. Second, the students in both classes wanted one opportunity to engage in an activity a practitioner in the field would do. My Contracts II students will be writing a client letter explaining the implications and problems in a proposed contract; my remedies students will be creating a remedies-focused discovery plan.

But it wasn’t all good. All my Contracts II students and most of my remedies students had me for a prior class so their only teaching methods request was to say—“do what you did in our other class.” The students’ only expectation for each other was a vague “be prepared for class.” Both groups completely deferred to me about coverage—“you decide, Professor Schwartz.” I guess, however, I am happy with the coverage choices I made . . .

The most interesting reaction to the whole process came from two remedies students who have done well in law school but had never had me for a class; both felt they wanted all my methods to be exactly the same as those they previously had experienced in law school. They vehemently opposed anything different and wanted to finish our discussion of class policies as quickly as possible. I suspect they felt that, having done well under the old system, a wide variety of teaching methods and multiple assessments would be of no benefit to them.

I think I will do it again, although I know I will again be nervous.

“There is no right answer,” we frequently tell students. “You have to articulate the reasoning.” It seems to me that what we really mean is that there are several ways to write an excellent answer to a final exam. And there are many ways to write not-so-excellent answers. But what are those many ways to write excellent answers? Giving students sample answers of excellent exams is one way to show them. Not just ONE answer, as that suggests that there is A right answer, but several. I ask students who have done well on final or midterm exams for permission to distribute their answers anonymously. No one has refused. I compile the answers and post them to the course website and email them to students. Students also receive scoring sheets for their essays, showing them how they earned the points for each exam answer. I offer to meet with any student who wants to go over their exam answers, but ask them to first compare their exam answer and scoring sheet with the sample answers. Does giving these samples and feedback ensure that students will learn how to improve their answers? No. But for those who are motivated and inclined to learn from the process, it can provide students with tangible information about what they learned, and what they need to work on.

Today is “Super Tuesday,” a mad Babel of election primaries across the country. I have read that many politicians have hired liguists to help them get out their message. The linguists use sociolinguistic frame theory, which essentially posits that how an issue is framed can impact and significantly affect the dialogue about the issue itself. (e.g., Calling a government program a “war on X” is useful because it creates winners and losers in a context people understand.)

I think frame theory also applies to legal education. From a teacher’s perspective, it would be great to know what other constituencies are thinking about legal education, really how they are framing it. For example,

1. What do law students want from their courses? Do they know what they don’t know? Should we ask them?
2. If practitioners want more “practice-ready” students, do they have ideas about how to achieve that goal efficiently? Does it require a revolution in traditional legal edcation? What skills should be emphasized in creating practice-ready students?
3. Can law schools shift their frame of reference to reward teachers for spending extra time teaching instead of writing? Do law schools want to be known as teaching schools or is scholarship the once and only king?

Just some thoughts about framing the debates about the “future of law schools,” and whether the Carnegie or Best Practices Reports have reasonable chances of being embraced and implemented…..Back to the election returns.

– Steve Friedland