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Skills-Focused Exam Prep Exercise

Skills-Focused Exam Prep Exercise

By Jeremiah A. Ho, University of Massachusetts School of Law

Yes, it is again that time of the semester again. The post-Thanksgiving emotional climb of test anxiety is upon us much like the Christmas music that has begun to trail us at retail stores.  I can see that anxiety in the eyes of my first-year students coloring their expressions when I greet them in the hallway or stare at their faces in the lecture hall.  Once November hits and the days start to get shorter, the inevitable fear of exams loom.

For many of them, the fear of exams is really about not having any confident direction or know-how in terms of preparing and taking law school exams.  That’s natural for new first-years.  What I’ve uncovered over the years is that a simple conversation with students is very helpful to allow students who are new to law school testing to get a handle on how to perform well on first semester finals.  I call this my yearly exam pep-talk.

What has been even more helpful prior to having my pep-talk is to give my first-years an exam-writing exercise that doesn’t focus on whether they are substantively correct on the material, but focuses on the skills of exam writing itself.  Then afterwards I have the talk about exam taking.  I tried this exercise recently with high satisfaction and success.  My theory is that after having an exercise that only focused on exam-taking allowed us to have an even fuller discussion of exam writing and solidified much of the truth about that process in order to dispel the fear of finals—the fear of some sort of unknown, in other words.

Here’s what I did:

(1) I gave a one-issue hypothetical fact pattern in class that covered a recent doctrine we recently taught in class.  Through class dialogue and discussion, I tested the students on their substantive application of that fact pattern.  I made sure to go the rule and the most correct response, working out the substantive answer together in class so that we’re all on the same page.

(2) Then I requested that they each take the same fact pattern home and write a one-issue IRAC response that reflected what we’ve already worked out for this fact pattern.

(3) At the next class, they returned with their written IRAC responses.  I passed a rubric for that response.  However, the rubric only measured their ability to write an organized IRAC essay—measuring for characteristics such as organization, IRAC structure, clarity, and grammar/syntax.  I made students turn to a partner, exchange fact patterns, and grade their partner’s response using this skills rubric.

My intent was that if the substantive issues had been clarified previously, the students were then able to focus on the how-to of writing exams when they wrote the one-issue IRAC at home.  For instance, they were now better able to focus on strategy and making effective choices in organizing an IRAC during the exam session.  Then grading each other’s responses with my skills rubric made it easier for them to understanding my thought process as the grader.

Doing this before my exam pep-talk helped them have better questions to ask me when I took the time to talk to them about exams.  What resulted was more effective focus and questioning regarding the skills part of their answers rather than the substantive aspects.  It led to a much better and more constructive conversation about exam taking that I had ever had.

Being human to my students and letting them know I care

Being human to my students and letting them know I care

By Jane Korn, Gonzaga University School of Law

I have taught first year law students for a long time.  Please do not ask how long!  But years ago, I became worried about the mental health and stress levels of my first semester, first year students. I teach a four credit, one semester course in Civil Procedure during the first semester of law school.   On the last day of the week that I teach in Civ Pro, I take a few minutes out of class time and ask my students to tell me how they are doing.

The first time I do this, usually at the end of the first week of law school,  I tell my students that it is my custom, from time to time, to take time out from Civ Pro, and talk about anything they would like (with some limits).  In some years, it takes weeks for them to take me up on this offer.  Other years, they start right in.  They ask questions like the following:

  1. When should I start outlining?
  2. How much time should I spend studying every night?
  3. How important is getting involved in extracurricular activities?
  4. What if I don’t know what kind of law I want to practice?
  5. Do professors care about grammar and organization on a final exam? (I only answer what I expect and do not answer for other faculty)

I think that much of the time, they do not get a chance to ask a law professor these kinds of questions, and can usually only ask upper class students.  While we have faculty advisors, students may or may not feel comfortable asking them questions like the above.  They eventually do (and sometimes quickly) feel comfortable asking me a wide variety of questions.  They sometimes ask personal questions and, within reason, I answer them because it makes them feel more comfortable with me.  Questions on gossipy matters about other faculty are off limits. If for example, they complain about another professor,  I handle this question with a smile and say something like – you should ask that professor about this issue.

I set aside class time for several reasons. First, while I do worry about giving up valuable teaching time, lessening the stress of my students may make them more able to learn.  Second, students often feel like they are the only one with a particular concern during this first semester, and they often do not have the ability to know that others have the same concerns or questions.  In the first year, many of our students are not from this area and are far away from support systems, at least at first until they can make friends at law school.  The ability to know that other students have the same problems they do can lessen the feeling of isolation.  Using class time to answer questions to the entire group may help them with this sense of isolation and being the only one who doesn’t know something.  It also lets them see that their concerns are important and credible.

Every year my teaching evaluations reflect this process positively.  Students feel like I care (which I do).  However, the reason I do it is to increase their comfort during those first few exciting, confusing, and terrifying months of law school.

Content Analysis Coding Practice

Content Analysis Coding Practice

By Sandra Simpson, Gonzaga University School of Law

Hi All,

I have been doing training on assessment practices for in-class use and for institutional programmatic assessment.  To that end, I am learning many techniques which I am employing in my class to find out what teaching methods are working and what are not.  I learned the following coding method which allows me to assess answers from my students to open-ended survey questions.  To use the coding method, I look for themes in their answers.  I describe the system below.  Please contact me should you have any questions on the methodology or what I do with the information.  In traditional, interactive fashion, there is a practice exercise at the end so readers can see how simple this method is.  Once I see themes, I am able to respond and make changes.

Method:

Course goal:  Students will learn how to locate and print and on-line sources which are complete and relevant to solving a factual problem.

Question posed:  You are asked to do many assignments and activities in this class to help develop your legal research skills.  Please identify an assignment or type of activity that you found most helpful in developing your research skills.  Please include in your answer a specific description of what about the assignment and/or activity that helped you.

I asked this question to my students as I wanted to hear the student perspective on which types of assignments and activities most effectively helped them develop research skills.  I give many assignments, but I was unsure which ones were useful. I also wanted to know what about the assignment was helpful: step-by-step instructions, group work, lecture, or flipped classroom model. I developed a coding system so that I could analyze the results.  I devised the coding after reviewing a 20% sample of student responses.  I randomized who I chose.  They turned in the responses, and I chose every 5th one.

  1. Identification number for class level: (accelerated student=1; a traditional 1L=2)
  2. Overall response: (0=no response/question was unanswered; 1= student provided a usable response; 2=state/implied that research skills were not strengthened in LRW I course; 3 =response was either not useful or could not be coded)
  3. Positive mention of a structured assignment which led the student with step-by-step instructions to helping them develop research skills. (0=no; 1=yes)
  4. Positive mention of a structured assignment which required to use or develop research skills but no mention of step-by-step guidance being useful. (0=no; 1=yes)
  5. Positive mention of a structured assignment which required students to work collaboratively. (0=no; 1=yes)
  6. Positive mention of lecture on how-to-do research in print by LRW professor. (0=no; 1=yes)
  7. Positive mention of demonstration on how-to-do research on-line by the librarians. (0=no; 1=yes)
  8. Positive mention of video demonstration on how-to-do digest research in print which is uploaded to the TWEN page. (0=no; 1=yes)
  9. Positive mention of one-on-one assistance of a faculty member. (0=no; 1=yes)
  10. Positive mention of one-on-one assistance of a librarian. (0=no; 1=yes)

Use the coding scheme on the previous page to code the following three responses.  Each student has one row.

Student 1: Accelerated student: I learned the most about research when we did the mini assignments on finding cases in the digests in print.  It was most effective to me as we were allowed to work in groups, the professor gave us clear instructions as to each step in the process and I was able to watch the video on TWEN where the professor walked through an example.  Other assignments did not teach me as much when I had to struggle alone as I wasted a lot of time.

Student 2: Traditional 1L: This class and all my law classes have been a struggle for me.  I often don’t know where to go for help, and I am tired and stressed all the time.  The teacher seems to favor the three girls in the front row.  The rest of us aren’t encouraged to say anything.

Student 3: Traditional 1L: the assignment that taught me the most about research and really helped to develop my research was our first open memo.  What helped the most was struggling through the resources myself, asking for guidance from the librarian, and meeting personally with the professor who went to the library with me.  I found myself looking back at my lecture notes and the reading to remember how to do things.  This particular assignment helped bring it all together.  The other mini-assignments were too disjointed to help me much.

Coding sheet

 

 

Change Your Syllabus, Change Your Life

Change Your Syllabus, Change Your Life

By Elizabeth Sherowski,
Visiting Clinical Assistant Professor, University of North Carolina-Chapel Hill

What’s in your syllabus? If you’re like most law professors, it’s a mash-up of course information, schedules, learning objectives, and university-dictated policy language. You probably cobbled it together during your first few years of teaching (cribbing some parts from other professors’ syllabi), and you probably haven’t updated it, other than to change the dates on the reading assignments, in some time.

But what message is your syllabus sending to your students? The syllabus is usually the first thing that your students experience in your course — and you never get a second chance to make a first impression. By changing the focus of the syllabus from rules and policies to explanations and support, we can change our students’ (and our) view of the course.

The Rule-Focused Syllabus

Imagine if, on your first day of teaching, one of your senior colleagues handed you a list of all the ways she predicted you would make mistakes in your first year, and the penalties you would incur for making those mistakes. That’s basically what we’re handing to our students when we kick off the course with a list of all the things they’re not supposed to do (miss class, turn work in late, start emails with “Yo, what up?”) and the penalties for doing them.

Syllabi that focus on policies and rules create a transactional relationship between the learner and the teacher. “If you do these things, and don’t do these other things,” it says, “I will reward you with this grade.” Frankly, that’s a terrible way to learn. It leads the student to focus on the outcome (the grade) rather than the process and importance of what they are learning. Additionally, research on adult learners shows that they learn best when teachers are partners, rather than authority figures. Presenting the course as a collection of rules, and presenting ourselves as the arbiter of those rules, actually hinders learning.

The Learner-Focused Syllabus

Now imagine if, on your first day of teaching, that senior colleague instead handed you a list of teaching practices they had found to be effective, with explanations of why those practices worked. That’s the idea behind the learner-focused syllabus — it explains what the students will learn, why it matters, and how to be successful. Rather than focusing on what matters to the teacher or the administration, it focuses on what matters to the learner.

For example, instead of just listing course objectives (“students will be able to research and apply federal regulations”), a learner-focused syllabus explains why those objectives matter and how they will be met:

Federal regulations impact almost every part of life, from the time we’re born (Department of Health, Department of Education) until after we die (Social Security Administration, Internal Revenue Service). Through in-class demonstrations and client simulations, we will learn to locate these regulations in print and online and apply them to our clients’ legal issues.

A student receiving the first syllabus will know what they will learn, and no more. A student receiving the second syllabus will know what they will learn, plus how they will learn it and how it fits in with their larger goal of becoming a successful attorney.

The same is true for rules and policies. Instead of taking a punitive or dictatorial stance (“students are required to bring both books to every class session, and failure to do so will negatively affect their grade”), a learner-focused syllabus explains the reasons behind the rules and policies, and helps students know and do what’s expected:

In some courses, it may seem that the reading is optional, but that is not the case in this class. Our casebook and supplement illustrate concepts that we will be learning throughout the course, and we will refer to them often. Therefore, please bring both books to every class meeting.

Nothing has been lost in the conversion from rule-focused language to learner-focused language — the students are still required to bring their books to class. But they’re more likely to comply with the second request because it explains the reason behind the rule and shows how following the rule will help them to succeed.

Changing Your Syllabus Will Change Your Life

Two years ago, I switched from a rule-focused syllabus to a learner-focused syllabus (you can see the evolution here). I knew it would change how students interacted with the course, but I didn’t realize how much it would change my teaching (and my attitude) as well. Changing my syllabus refocused my attention on what I love about teaching: helping and encouraging students, not making and enforcing rules.

The learner-focused syllabus also forced me to explain (and subsequently re-evaluate) my course objectives, making the course more coherent and the teaching less taxing. The new syllabus helped my students focus on what really mattered, and teaching became more enjoyable with learners who were interested in learning skills that would help them achieve their long-term goals, rather than just angling for an A.

Changing my syllabus was a lot of work, but it paid off in more-motivated students, a more coherent course, and a much happier professor.

 

Elizabeth Sherowski is a Visiting Clinical Assistant Professor at the University of North Carolina-Chapel Hill School of Law. Email her at esherowski@unc.edu.

 

 

Notes on Supporting Non-Millennial Law Students

Notes on Supporting Non-Millennial Law Students

By Jeremiah A. Ho, University of Massachusetts School of Law

Usually about this time in June—during the early-to-middle weeks of the summer break—is when I do an assessment of my teaching from the past academic year.  By now, all of my final exams have been scored for a while and grades have been submitted.  Students are gone off for their summer jobs and internships.  A sense of quiet resides within the faculty hallways and invites contemplation.  For me, it’s a great time look back because the distance from finals grading has dissipated any visceral feelings—positive or negative—that might have otherwise influenced a look-back at my teaching.  I want any assessment to be as honest and objective as possible.

In looking back this particular year, I note the presence of a few more non-traditional, older law students in my first-year courses than usual.  Because of their increased presence, the challenge of trying to support them was thrust upon me from fall to spring.  Of late, I have seen many great pieces in current law teaching literature focused on teaching law students from the millennial generation.  However, when curiosity got the best of me and I searched for current articles on teaching and supporting law students outside of the millennial generation, I found some statistical knowledge, but not very much constructive observations or information.  For those likeminded folks who have also wondered how to better teach and support our older, non-millennial law students, I have a few observations from my own experiences this year.

  1. Non-millennial law students are not a homogeneous group. Just because they are beyond the current mainstream generation of law students in age, does not mean that they resemble each other either.  Many of my non-millennial law students varied in age and background from each other as well.  As a reflection of that variation, they brought to the student body many differences in socio-economic status, career backgrounds and goals, and life experiences.  For me, as the instructor, this variation also meant trying to use different strategies to make them feel included in the dialogue in the classroom—often relying on their practical experiences before law school to invite conversation.  For instance, in Contracts, cases dealing with homebuying or employment relationships often allowed my non-millennial law students who own property or have had working experiences to engage in the material from a more practical way and offer insight.
  1. Non-millennial law students often prepare differently for classes than younger law students. One very observable characteristic between my millennial and non-millennial law students has been in their method of preparation.  Whereas my millennial law students will often find something in their case reading is relevant only because it’s relatable at the time to a concept that we were readily and simultaneously learning in the course, my non-millennial law students will try to broaden what is relevant and significant by asking themselves, “Do I need to know this just in case?”  This difference translates into their preparation for my classes and final examination.  While I have to sustain relevancy for my millennial law students, I have to show my non-millennial law students what material or information might be extraneous.
  1. Some non-millennial law students tend to become important emotional pillars in the student body. Because of their life and career experiences prior to law school, my non-millennial law students often become role models in extra-curricular positions or become sources of emotional support to their millennial counterparts in the first year.  This occurrence often does put added stress to their own studies and time management.  As the professor, I often will remind my non-millennial law students to take a moment and assess what they can or cannot take on—especially for those students who might also have an active family life or work responsibilities outside of law school.
  1. Non-millennial law students learn just as quickly and as readily as millennials. I have no quantitative or qualitative statistics here.  This observation is just anecdotal.  However, I have witnessed the successes of many non-millennial students in my various classes, which gives me confidence in making this statement.  I do concede that success could be attributed to the amount or type of preparation that non-millennial students put forth rather than natural ability.  But I stand by this assertion, nonetheless.  It is an observation that counters biases against any societal perceptions of “handicaps” to learning as an older law student.
  1. Non-millennial law students bring a contextualized experience to the dialogue of the classroom. Often, this observation is touted as a reason to welcome the admission of older law students in law student body.  It adds to the diversity of the student population and can be seen as generating different viewpoints in class dialogue.  That is true to some extent.  However, I have noticed that sometimes the prior work, life, or industry experiences outside of law school can also impair ways to see the other side of a situation—especially if they have had some extensive work experience in something related to my course.  So I often will spend time in the classroom welcoming their viewpoints but also de-contextualizing them by countering with hypotheticals that might get them to see other possible sides of an issue.

These points above are generalized observations and not all non-millennial law students exhibit these traits.  However, I hope my descriptive observations here give some guidance and food for thought to other law teachers out there who are interested in making sure non-millennial law students succeed just as well as their millennial peers.

 

A Negotiation Exercise for Your Legal Skills (or Contracts) Course

A Negotiation Exercise for Your Legal Skills (or Contracts) Course

By George J. Siedel, University of Michigan

An ABA Business Law Section task force recently completed a landmark report titled “Defining Key Competencies for Business Lawyers” that was published in 2017 in The Business Lawyer (Winter 2016/2017).  The report drew on the framework of the ABA MacCrate Report (“Legal Education and Professional Development–An Educational Continuum”), and is directed toward law schools and law firms.

Both reports emphasize the importance of negotiation as a key lawyering skill.  As the MacCrate report notes, “the skill of negotiation is a fundamental part of legal practice….”  The reports also discusses the analytical skills that lawyers must have when participating in negotiations.  The MacCrate report, for example, emphasizes that all lawyers must be able to (1) determine the bottom line; (2) evaluate alternatives; (3) identify outcomes from the negotiation; (4) analyze whether the negotiation is zero-sum, non-zero-sum, or a mixture of the two; and (5) examine the negotiation from the perspective of the other side.

A Free Teaching Package to Develop Negotiation Skills

I have developed a free teaching package that can be used by professors who want to introduce these skills in their courses.  The package includes a negotiation exercise with two roles, a Teaching Note, and Powerpoint slides.  The package could be used in a legal skills development course, in a legal writing program that includes negotiation, or (because the exercise is a contract negotiation) in the first-year Contracts course.  Here is a link to the package:

https://umich.box.com/s/ewycm8d4vedns15hj7m68oxfx4yu2qvz

The exercise, titled “The House on Elm Street,” involves a transaction that everyone can relate to—the sale of a house.  The twist in the exercise is that, unknown to the seller, the buyer is a secret agent representing a company that wants to demolish the house.  Students receive a short (two-page) role as either the buyer or seller, and they negotiate for 30 minutes, followed by an instructor-led debriefing.

The exercise is designed to achieve several learning goals that include the analytical skills mentioned in the two ABA reports.  Students will learn how to:

  1. understand the different types of negotiations;
  2. prepare for negotiations using a negotiation analysis that includes a reservation price, most likely outcome, stretch goal, and zone of potential agreement;
  3. recognize and decide ethical issues, using law-based standards (fraud, fiduciary duty, and unconscionability) and general ethical standards;
  4. develop and use their negotiating power through the concept of BATNA (“best alternative to a negotiated agreement”);
  5. apply contract and agency law concepts to negotiations; and
  6. create value in a manner that benefits both sides.

The Teaching Note is divided into three sections.  Section I explains how to set up the negotiation exercise.  Section II provides a script, with slides, for debriefing the exercise.  Section III discusses a document titled “Self-Assessment and Feedback for the Other Side” that is appended to the Teaching Note.  Students can use this document to evaluate their negotiation skills and develop a plan for skill improvement.  In law school courses where legal skills are taught within a legal writing course, the evaluation and plan could be used as a writing assignment.

Feedback from Participants

I have used this exercise in degree courses and in executive seminars in North America, South America, Asia and Europe.  In addition to law students, attorneys and judges, other participants in the courses and seminars include athletic directors, engineers, entrepreneurs, managers, and physicians.  Organizations in the public sector (for example, the World Bank) and private sector (one of the five largest U.S. companies) have used the exercise for negotiation training led by in-house staff.

Feedback on the exercise has been positive.  Here is a comment on the debriefing experience and the plan for improving negotiation skills.

What a great learning experience! [T]he ability to get feedback and actually debrief a negotiation is really powerful!  I considered myself rather self-actualized, but some interesting things came to light in the class discussions.  I know that if I make a concerted effort to work on [my plan for skill improvement] it will certainly serve me well in my career—both now and in the future.

I have also received considerable feedback regarding the impact of the learning from the exercise.  Here is a comment from a participant who used a planning checklist based on skills covered in the exercise.

I received a quote from a key supplier a few weeks back that was very good and I was just going to accept it as is. [But first I decided to complete the] planning checklist and called in the supplier. We had a great meeting, expanded the pie, learned tons about what each other wanted. In the end we renegotiated everything, set up yearly pricing reductions and a 2 tier pricing schedule that allows me to cover depreciation expenses on any expansion and provides my supplier the long term commitment from me he wanted.  Win-Win. The projected savings over the next 5 years is over $4M ….

If you decide to use the exercise, I would appreciate your comments and recommendations for improvement of the materials.  Thank you.

__________________________

George J. Siedel is the Thurnau Professor of Business Law and the Williamson Professor of Business Administration at the University of Michigan.  He can be contacted at gsiedel@umich.edu.

 

How You and Your Students Can Benefit From Stone Soup Next Year

How You and Your Students Can Benefit From Stone Soup Next Year

By John M. Lande, University of Missouri School of Law

The University of Missouri Law School started the Stone Soup Project about a year ago to incorporate more knowledge about actual practice in legal education.

Stone Soup contributes to a more balanced educational diet, adding context of disputes and more focus on parties.  Readings on legal doctrine generally are extremely acontextual.  Of course, students get value in reading excerpts of appellate case reports to learn about legal doctrine and analysis.  Similarly, students get value in reading about practice theory.

But I think that most law students get too little education about how cases actually look to lawyers.  In real life, cases are full of facts, evidence, uncertainty, risk analysis, interests, relationships, and emotions, which provide context that is systematically stripped out of most of our teaching materials.

And parties – central characters in lawyers’ work – typically are portrayed as cardboard figures who are included merely to demonstrate our teachings, not as the principals, who lawyers serve.

Readers of this blog know this.  People – maybe including you – have been saying this for a long, long time.  Indeed, this has been a major motivation for clinical and some other instruction.

Stone Soup is another systematic effort to provide a more balanced educational diet for students by including more of these perspectives in our teaching.

How Stone Soup Works

Since we started the Project about a year ago, we have engaged almost 1000 students in 40 classes covering 12 subjects, taught by 32 faculty from 25 schools in 3 countries.

Faculty generally have assigned students to conduct interviews about actual cases and/or practitioners’ backgrounds, philosophies, and practices.  Some faculty assigned students to observe court proceedings or mediations.  You can tailor an assignment to fit your educational objectives.

Most assignments were in traditional ADR courses, but faculty also used Stone Soup assignments in other courses including Access to Justice, Evidence, Relational Lawyering, Resolving Community Civil Rights Disputes, and Trusts and Estates.  Faculty could use them in almost any course, such as Labor Law, Employment Discrimination, Professional Responsibility, Civil Procedure, and Criminal Law, among many others.

Stone Soup faculty assessed their courses, identifying what worked well, what students learned that they would not have learned without the assignment, and what faculty would do differently in the future.  Here’s a collection of their assessments.

Faculty consistently reported outstanding results that far exceeded our expectations.  Stone Soup has provided many benefits including:

  • increasing students’ exposure to the real world of practice
  • helping students develop critically-important interviewing and analysis skills
  • identifying how theory does and doesn’t map well onto actual practice
  • supplementing faculty’s knowledge, especially for faculty who haven’t practiced in the subjects they are teaching – or haven’t practiced at all
  • increasing students’ and faculty’s enjoyment of the courses

Faculty who used Stone Soup assignments in their courses this year generally plan to use Stone Soup again with little or no change.

How You Can Use Stone Soup

The initial experiences yield some general suggestions for using Stone Soup.  In particular, faculty should require students to complete interviews or observations as soon as appropriate in a course, and should schedule time in class to discuss what students learned.  Discussing insights from these assignments early in a semester provides a base of experience that everyone can refer to during the rest of the course.

Here’s a table identifying characteristics of Stone Soup courses and including links to faculty assessments of the courses.  The table demonstrates the incredible creativity of faculty in tailoring assignments to fit their instructional goals and circumstances.  For each course, it shows:

  • Class size
  • Description of the Stone Soup assignment
  • Whether the assignment was required, one option of an assignment, or extra credit
  • Assigned paper length
  • Due date
  • Percentage of grade, if any
  • Whether the results of the assignment were discussed in class

Some faculty like the Stone Soup idea generally but wonder if it work in their courses or feel hesitant for other reasons.  This post identifies some colleagues’ concerns and responses to those concerns.  In particular, the assignments need not add much, if any, workload, students generally can find interview subjects without faculty assistance, and Stone Soup can work well in almost any law school course.

If you would like more information, you can read this report on the Project’s first year and/or get in touch with me.

If you would like to join the roster of colleagues using a Stone Soup assignment next year, please let me know the courses(s) and semester(s) in which you would use it.

Using Instant Replay to Teach Standards of Review

Using Instant Replay to Teach Standards of Review

By David Sorkin Associate Professor of Law
The John Marshall Law School

Using Instant Replay to Teach Standards of Review
David E. Sorkin, The John Marshall Law School
Bepress – David Sorkin 

A colleague recently posted a question on the Legal Writing Institute’s mailing list, seeking ideas for “fun” ways to teach students about standards of appellate review. Several other colleagues responded with suggestions, some of them noting the similarity between legal standards of review and the standard for overturning a official’s call in a football game or other sporting event. The point has also been the subject of considerable legal scholarship.[1]

I use an exercise in my first-year legal writing classes based upon this similarity. After introducing the concept of standards of appellate review, I show my students a brief clip of a football play involving a close call, and ask students to articulate the relevant rule —for example, a forward pass is illegal after the ball has crossed the line of scrimmage. I tell students to apply that rule to the facts they have observed and vote on the appropriate call.

Next, I show the actual call that was made by the field official. Some students will undoubtedly disagree with that call and suggest that it ought to have been challenged. Sometimes a student will even reference the standard that governs instant replay reviews—“clear and obvious visual evidence” warranting reversal (or as it was termed prior to 2016, “indisputable visual evidence”). We then watch the play in slow motion and discuss whether the call should have been reversed under that standard. This leads into a discussion of why the NFL has selected that standard of review, whether it is the appropriate standard, and how it compares to the standards of review used by appellate courts.

One play that works well for this exercise is the so-called “Instant Replay Game”—Chicago Bears at Green Bay Packers, November 5, 1989:

Packers quarterback Don Majkowski threw an apparent game-winning touchdown pass with less than a minute remaining in the game. The linesman called a penalty on the basis that Majkowski had crossed the line of scrimmage before releasing the ball, making it an illegal forward pass. The Packers challenged the call and the referee reinstated the touchdown after viewing an instant replay, ruling that Majkowski had not crossed the line of scrimmage. (The rule itself was subsequently changed, to define an illegal forward pass based upon the position of the passer’s feet instead of the position of the ball.)

For a more accessible example, consider Philadelphia Eagles at Dallas Cowboys, September 15, 2008:

Eagles wide receiver DeSean Jackson caught a long pass and ran into the end zone, flipping the football behind him to celebrate what appeared to be his first NFL touchdown. The Cowboys challenged the touchdown call, noting that Jackson had already flipped the ball by the time he reached the goal line. The call was reversed, and the Cowboys ultimately won the game by four points. (Jackson’s hasty celebrations date back to his high school days.)

Several controversial calls were made by replacement officials during the NFL referee lockout of 2012, including the “Inaccurate Reception”—Green Bay Packers at Seattle Seahawks, September 24, 2012:

Down by five points with eight seconds remaining, Seahawks quarterback Russell Wilson threw a long pass to receiver Golden Tate in the end zone. Both Tate and Packers safety M.D. Jennings got their hands on the ball. The two replacement officials near the play made contradictory calls and then ruled that the two players had simultaneous possession, resulting in a game-winning touchdown for Seattle. On review, the referee ruled that there was not adequate evidence to overturn the call, so the touchdown stood. (The scope of review was limited by NFL rules; the field officials probably should have called offensive pass interference and voided the touchdown on that basis.) Two days later, the NFL settled with the referees association, ending the lockout.

There are, of course, many other examples that will work. For example, the Dallas Cowboys lost a 2015 playoff game as a result of a reversed call. A collateral attack on that ruling (brought by a prisoner suing the NFL) was dismissed on procedural grounds.

Some may prefer to use examples from other sports. Most use a standard of review similar to that of the NFL.

The exercise gives students an opportunity to practice legal analysis in a familiar (or at least different) context, and is especially helpful in introducing them to what otherwise can be a very dry topic.

I hesitate to use sports analogies in class, knowing that they are likely to put off some students. But I have found that, at least in this instance, doing so tends to engage students and elicit enthusiastic participation from those who do not usually volunteer (especially Packers fans, even in Bears country).

 

[1]See, e.g., Steve P. Calandrillo & Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1 (2017), http://harvardjsel.com/wp-content/uploads/2017/01/Calandrillo.pdf; Kenneth Kilbert, Instant Replay and Interlocutory Appeals, 69 Baylor L. Rev. 267 (2017), https://ssrn.com/abstract=3008827; Russ VerSteeg & Kimberley Maruncic, Instant Replay: A Contemporary Legal Analysis, 4 Miss. Sports L. Rev. 153 (2015), http://mssportslaw.olemiss.edu/files/2015/09/EIC-VerSteeg-Edit-FINAL-Macro-p.-153-273.pdf; Mitchell N. Berman, Replay, 99 Cal. L. Rev. 1683 (2011), https://doi.org/10.15779/Z38DQ4S; Chad M. Oldfather & Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009), https://mckinneylaw.iu.edu/ilr/pdf/vol43p45.pdf; Aaron R. Baker, Replaying Appellate Standards of Review: The NFL’s “Indisputable Visual Evidence”: A Deferential Standard of Review, 16 Tex. Ent. & Sports L.J. 14 (2007), http://teslaw.org/wp-content/uploads/bsk-pdf-manager/2017/03/Spring_2007_vol.-16-1.pdf; S. Christopher Szczerban, Tackling Instant Replay: A Proposal to Protect the Competitive Judgments of Sports Officials, 6 Va. Sports & Ent. L.J. 277 (2007), http://heinonline.org/HOL/LandingPage?handle=hein.journals/virspelj6&div=15; Bennett Liebman, Reversing the Refs: An Argument for Limited Review in Horse Racing, 6 Tex. Rev. Ent. & Sports L. 23 (2005), http://heinonline.org/HOL/LandingPage?handle=hein.journals/tresl6&div=4; Jack Achiezer Guggenheim, Blowing the Whistle on the NFL’s New Instant Replay Rule: Indisputable Visual Evidence and a Recommended “Appellate” Model, 24 Vt. L. Rev. 567 (2000), http://heinonline.org/HOL/LandingPage?handle=hein.journals/vlr24&div=22.

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

By Ben L, Fernandez, Legal Skills Professor
University of Florida Levin College of Law

IRAC is an acronym for Issue, Rule, Application and Conclusion.  I imagine every law school in America teaches its students to use some variation of IRAC as the structure for analyzing a legal issue.  And IRAC works fine if the analysis is simple, like this:

Issue
The issue in this case is whether Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

Rule
A basic tenet of premises liability in tort law is those who own or control property have a duty to maintain it in safe condition.  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application
Supermarket Corp. was the owner of the property where the accident occurred, and was also in control of the store on the premises.

Conclusion
Therefore Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

The problem with IRAC is most legal reasoning is not that simple.  Society doesn’t need lawyers to analyze legal problems that can be deduced from a general rule.  The problems lawyers are most often tasked with analyzing involve analogical reasoning.  We analogize or distinguish fact patterns to determine whether and how the rule applies.  So the “A” in IRAC isn’t usually as simple as applying the rule to the facts.  We need to compare the facts of the fact pattern to the facts of a similar case.  And IRAC doesn’t give the students much guidance on how to structure the application portion of the analysis.

When I teach IRAC as a form for analyzing a legal issue, I tell students to start with the issue and the rule, then apply the rule by giving an example of how the rule was applied in a reported case.  To do the application part of IRAC, start with the facts of the case, describe the holding, and explain the reasoning for the court’s decision.   Then state the fact pattern is analogous, compare the facts to highlight the similarities, apply the rule of the case, and come to a conclusion.  The mnemonic I use to help students remember that structure is “Ferrari Has Really Fast Race Cars,” which stands for Facts, Holding, Reasoning, Facts, Rule and Conclusion.

Here is an example of what an analysis would look like using this formula:

Issue
The issue in this case is whether evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Rule
“Where a foreign substance on a floor or stairway causes the business visitor to fall and sustain injuries, he may prove the negligence of the defendant by proof that . . . the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.”  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application:  Facts (Ferrari)
For example, in Anjou v. Boston Elevated Ry. Co., 208 Mass. 273 (1911) the plaintiff slipped and fell on a banana peel.  According to witness who had examined it, the banana peel “’felt dry, gritty, as if there were dirt upon it,’ as if ‘trampled over a good deal,’ as ‘flattened down, and black in color,’ ‘every bit of it was black, there wasn’t a particle of yellow,’ and as ‘black, flattened out and gritty.’” Id. 

Application:  Holding (Has)
Based on that evidence, the court held that “[t]he inference might have been drawn from the appearance and condition of the banana peel that it had been upon the platform a considerable period of time, in such position that it would have been seen and removed by the employees of the defendant if they had been reasonably careful in performing their duty.” Id.

Application:  Reasoning (Really)
A banana peel is perishable.  It decays over time and turns black.  Therefore, if a banana peel looks black and gritty, it is reasonable to infer it’s been sitting for a while.

Application:  Facts (Fast)
This case is analogous.  The customers in both cases slipped and fell on perishable substances.  Wax beans and strawberries, like bananas, are perishable.  After the passage of time, beans turn brown and strawberries turn black, just like bananas turn black when they decay.

Application:  Rule (Race)
For the same reason it is reasonable to infer a black banana peel has been on the floor for a substantial length of time, it is also reasonable to infer dirty brown beans and black strawberries have been on the floor for a long time.

Application / Conclusion (Cars)
Based on the evidence, the store owner in this case should have known of unsafe condition and either cleaned it up or warned customers of its existence.  By failing to do either, the owner breached the duty of reasonable care.

Conclusion
Evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Ferrari Has Really Fast Race Cars.  To apply a rule by making an analogy, start with the Facts of an analogous case, and the case citation.  Then state what the court Held, and explain the court’s Reasoning.  Insert a paragraph break and state the fact pattern is analogous.  Then compare the Facts of the fact pattern to the facts of the case.  Apply the Rule to the fact pattern the same way the court applied it in the case.  And come to a Conclusion.

 

Escape the classroom: how to bring class simulations to life

Escape the classroom: how to bring class simulations to life

By Carman A. Leone, Maj, USAF[1]
Assistant Professor of Law

In the spring semester of 2017—sitting in a fluorescently lit, sterile classroom—I watched a pair of my students awkwardly negotiate in the front of the classroom with my colleague who was playing the role of an Afghan police chief.  The simulation was a roleplay assessment offered as part of the United States Air Force Academy’s negotiation course.  The students were playing the role of two junior Air Force second lieutenants who needed to negotiate security protocol with the police chief in his Afghanistan-based office.  The students mechanically applied a few of the negotiation skills I taught them during the course.  One of the students smirked at something my colleague said while in character, seemingly scoffing at the ridiculousness of the simulation.

This irritated me.  I wanted the students to take the simulation seriously and chalked up their lack of enthusiasm as their problem, not mine as the professor.

Shortly after, I realized it was my problem.  After the simulation, but before fall 2017 semester started, I participated in an “escape the room” game.  The premise of escape the room game is to solve a series of riddles and puzzles using clues embedded in a thematic setting.  Although the building which housed the game was in a nondescript industrial park, my particular game was set in a mountain hunter’s cabin, complete with trophy mounts, wood paneling, a worn bookcase, pad-locked drawers inset within a desk, and a trap-door-backed fireplace.  As I crossed the threshold from the office waiting room into the “game room,” I was transported.  Dozens of details in the room were clues that lent to a piece of a bigger puzzle.  For example, by reading backwards a riddle inside a tattered book on the inconspicuous bookshelf in the corner of the room, I realized I needed to count the number of “points” on the trophy mounts hanging on the wall, which then provided the numerical combination necessary to open a pad-locked drawer of a desk in the room.  The contents of the drawer provided another clue for the next puzzle.  For sixty minutes I felt as though I was truly locked in a hunter’s cabin, largely due to the thoughtful details which made the game authentic.

Before conducting the Afghan simulation again the following semester, I decided to transform my classroom into the Afghan police chief’s office, using the inspiration from my experience in the escape the room.  First, I placed two free-standing floor lamps in the room to provide low, warm lighting to replace the fluorescent lamps that previously shined overhead.  I moved a light-weight bookshelf next to a freestanding, dark-stained table which served as a desk.  I stocked both with a few books and mementos typical of a real office.  A framed picture of my family sat on the desk next to a collection of dry erase markers which the best students would ultimately use to brainstorm potential options on the flipchart resting on an easel just feet away from where they sat.  A framed, ornate dagger was placed on the edge of the desk for intrigue and intimidation purposes.  A side table, set with a water pitcher and four matching glasses, sat inconspicuously next to the desk.  Behind the desk, a “to-do” list was written on the large whiteboard, serving as clues to the interests of the police chief, about which the wisest of student would inquire.  There were dozens of planted details and clues that students could have used to help unlock success in the simulation.

Remarkably, very few students used the clues that were within fingers’ reach of where they sat.  The students who performed the best identified the planted clues and used them effectively.  For example, students who noticed the framed picture on the desk and asked whether the Afghan police chief was a father or husband, created a terrific opportunity for rapport building.  Even better, those students who asked about to the “to-do” list written on the whiteboard behind the desk unlocked a number of interests of the police chief that were not otherwise apparent.  One of the best pairs of students asked the Afghan police chief to sit at the side table where they all would be more comfortable, eliminating the power dynamic by removing the police chief from behind his desk.

In a debrief following the exercise, students noted just how unique the experience was.  Many reported feeling nervous and unsure of themselves when they walked into what they described as “the dim lair of the Afghan police chief.”  Some claimed to have recognized the planted details, but many admitted they did not know what to do with them.  Some recounted the adrenaline they felt walking into the room, as if they were stepping onto the sports field ready to compete.  Others described crumbling under the weight of nervousness and uncertainty.  All agreed the experience was unique and realistic.

A few students offered ways to even further improve on the experience.  For example, one student suggested playing authentic Afghani music at the beginning of the exercise while students walk into the office to begin the simulation.  Another student offered the idea of lighting incense in the room to add to the authentic experience.

Ultimately, I offer this advice to educators concerned with the lack of enthusiasm in roleplay scenarios:  if you want your students to submerse themselves into your simulation, make it irresistibly authentic.  Not only will it improve the level of engagement, but it will provide a unique opportunity students may not experience until they graduate.

 

[1] The views expressed herein are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the U.S. Air Force, the Department of Defense or the U.S. Government.

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