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Review: Of Courtrooms and Classrooms

Review: Of Courtrooms and Classrooms

By Rory Bahadur, Washburn University School of Law

Daniel Cover, Of Courtrooms and Classrooms, 27 B.U. Pub. Int. L.J. 291 (2018)

In her recently published article “Of Courtrooms and Classrooms,” professor Cover suggests ways that trial lawyers can increase the efficacy of their presentations to juries by analogizing the jurors to students in a law school classroom.  Even though the article is targeted at practicing attorneys her comparisons of jurors and law school students provide useful insight in to the hallmarks of effective pedagogy.

In her introduction, Cover points out that essentially a trial lawyer’s job is to convince jurors who have no idea going in what the case is about. She does this through a storytelling/narrative technique that captures the jurors’ attention even though many of the concepts coming at them are new and they are in a difficult environment where long days promote fatigue.  This she suggests is akin to the law professor’s job in the traditional doctrinal classroom.

She then examines the theory of how adults learn or andragogical information and concludes that some essential components of adult education are:

  1. The student rather than the subject matter is the center of the inquiry
  2. Adults learn better when they have a need or experience learning will satisfy
  3. Adults want to be self-directed in their learning
  4. Because of the various experiences acquired over the time it takes to become an adult, effective pedagogy must take into account difference in style, time, pace and place of learning.

The article goes on to describe in tangible and very useful ways law professors and trial lawyers can ensure the principles listed above are incorporated into presentations.  However, the most fascinating of these is here reference to the “disorienting moment.”

Cover explains that in the law school classroom and in trials students and jurors experience moments when their previously held beliefs and assumptions are challenged.  This she explains is a “disorienting moment.”  She suggests that these disorienting moments, when an adult’s schema are challenged, provide the most fertile ground for planting the seeds of new information. This is because challenges to schemas facilitate the incorporation of new information into the schemas and the creation of new schemas.

If you take only one useful piece of information (though the article is chocked full of useful information) form Cover’s work, then consider she suggests designing classroom presentations to deliberately include disorienting moments which facilitate significant incorporation of new knowledge into old knowledge.

Ultimately, the article is well researched and very useful.  It is a must read

 

 

Review: Teaching Law Students to Teach Themselves…

Review: Teaching Law Students to Teach Themselves…

By Rory Bahadur, Washburn University School of Law

Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners, 59 Wayne L. Rev. 311

In her article, “Teaching Law Students to Teach Themselves: Using Lessons from Educational Psychology to Shape Self-Regulated Learners,” Elizabeth Bloom sets forth a very user friendly and informative road map for “maximiz[ing] the learning experience” to help a “diverse population of law students become self-regulated learners.”

The article initially defines self-regulated learning and discusses its origins in both the cognitivist and constructivist learning theory movements.  She isolates the essential components of self-regulated learning as Schema creation, using prior knowledge to add new knowledge and metacognition.  She concludes by precisely describing self-regulated learning as consisting of the following three phases: forethought, performance, and reflection.  The unique aspect of this article is that it then describes concretely and tangibly what each of these phases looks like or consists of rather than leaving those terms as isolated amorphous learning buzzwords divorced from the reality of the classroom.

But the article goes even further and provides concrete methodologies to teach self-regulated learning.  These methodologies are broken down into strategies to:

  1. self-regulate motivation,
  2. self-regulate behavior and resources and,
  3. self-regulate cognition.

This article is a must read for anyone seeking to bridge the divide between the copious abstract, academic literature on teaching and learning and practical strategies to implement these methodologies without being overwhelmed by terms and buzzwords which seem foreign to may faculty members.

 

Review: From Seminar to Simulation: Wading Out to the Third Wave

Review: From Seminar to Simulation: Wading Out to the Third Wave

By Tonya Krause-Phelan, WMU-Cooley Law School

From Seminar to Simulation: Wading Out to the Third Wave by Margaret Moore Jackson
19 JOURNAL OF GENDER, RACE, AND JUSTICE 127 (2016)

From Seminar to Simulation: Wading Out to the Third Wave encourages legal educators to embrace simulated teaching in light of the newly-adopted ABA standards relating to experiential learning. Because ABA Standard 303(a)(3) requires students to complete at least six credits of experiential coursework which can be earned in law clinics, field placements, or simulation courses, Professor Jackson suggests that simulation teaching can be integrated into existing courses by reformatting seminars, those upper-level, reading and discussion-based courses that typically focus on specialized areas of law not usually tested on the bar exam. Reformatting a seminar course as a simulation course allows faculty to accomplish two significant goals. First, it provides an experiential learning opportunity for students that meets, if not exceeds, the new requirement. Second, it can also create an opportunity for students to develop and use professional values as they learn to apply the law.

Beyond meeting the new standards, including simulations as experiential teaching is a way professors can foster integrated learning. Many professors already incorporate classroom exercises and role play into their doctrinal classes. Even though these efforts are designed to develop students’ professional skills, they do not satisfy the ABA’s definition of a simulation course. To comply with Standard 304, a simulation course must reasonably assimilate the experience of   client representation or engage in other lawyering tasks in a set of facts and circumstances devised or adopted by a faculty member. The simulation course requires faculty to directly supervise the student’s performance followed by faculty feedback and student self-evaluation. Finally, there must be a classroom instructional component.

From a faculty perspective, a potential barrier to merging simulated teaching and experiential learning into existing courses is the time-consuming nature of simulation teaching. Faculty are also apprehensive about how much subject matter will have to be sacrificed to carve out enough time for the simulation component. Despite the potential difficulties, there are many benefits to simulation teaching. For starters, simulation teaching assists in applied knowledge and introductory skills development in that it cements learning of substantive law. Faculty can continue informal doctrinal teaching as students engage in simulated roles by structuring assignments that teach practical lawyering skills that will also reinforce their learning of legal analysis. And because simulated teaching fosters concentrated learning of professional skills and values, it also promotes justice, underscores service to the community, and helps students to overcome assumptions and inherent biases.

Although the ABA requirements for a simulation course appear formidable, Professor Jackson suggests that restructuring courses to provide students with six credits of experiential education might not be as daunting a task as some might think. Professor Jackson provided a template for creating a plan convert a seminar course into a simulation course based on her housing discrimination class. But the format easily translates to any substantive class or seminar. Begin by identifying the competencies students should achieve by the end of the course. Make sure to envision these competencies in the context of the area of law. The objectives should be relevant and realistic in the area of practice. Be careful to limit the goals to an amount that can be effectively implemented and assessed. Consider a format that focusses on repetition and refinement of targeted skills in relation to more elaborate doctrine.

For example, in Professor Jackson’s fair housing seminar, students were assigned to represent a hypothetical client. The assignments required students to know the applicable law, provide client advice based on the law and the particular situation, communicate with other lawyers, judges, and real estate professionals as the client’s case required, and to be alert to potential injustices. Supplementing exercises included professional writing activities and oral presentations to a community audience.  A final component of the exercises encouraged students to focus on client communication designed to develop relational skills and empathy, dispel students’ false assumptions about the role of law in society, and to develop their self-conceptions as professionals to promote justice.

Transitioning to simulation teaching provides faculty with opportunities to connect learning the law with developing the skills, instincts, and inclinations to use the law to promote justice. Whether a professor seeking to augment a doctrinal class with experiential learning exercises or a professor looking to dive into the full spectrum of simulated teaching, From Seminar to Simulation: Wading Out to the Third Wave provides the pedagogical support and procedural format to transition to simulation teaching.

 

Review:  Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

Reviewed by Jeremiah A. Ho, University of Massachusetts School of Law

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment and Summary Judgment Success, 22 J. Leg. Writing Inst. ___ (2018).

SSRN Article Link

By Shaun B. Spencer and Adam Feldman

Because I teach first-year law students, the spring semester always brings back recollections of the first-year legal writing experience, culminating with the classic appellate brief assignment.  When I came across my colleague Professor Shaun Spencer’s latest article, co-written with Adam Feldman, a J.D./Ph.D post-doctoral fellow at Columbia Law, I thought it was apt to share—not just because the article’s main handle pertains to the topic of legal writing, but also because of what it implies for law teaching generally.  The article is titled, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, at it is forthcoming this year from the Journal of the Legal Writing Institute.

At the start of Spencer and Feldman’s article, the piece seems exclusively relevant for practitioners because it presents us with a statistical relationship between the readability of summary judgment briefs to the rate of favorable case outcomes.  Thus, in terms of readability, proficient legal writing is a valuable commodity in law practice according to their results.  However, the academic implication is also clear because legal writing is also what law schools teach.  The idea of effective legal writing lies at the heart of various legal writing textbooks and numerous pieces of scholarship on the subject.  Since Langdell, legal writing classes have been welded into the law school curriculum.  And ABA accreditation standards reinforce that tradition of teaching legal writing by mandating that students take writing courses throughout their law school careers.  In this way, Spencer and Feldman’s article is one to observe.  Their empirical study underscores the value of instruction and competency for the art and skill of legal writing.

Judges might hesitate to divulge that the quality of a practitioner’s writing can influence judicial decision-making of a case—since this revelation would clash with the idea that cases are resolved based on adjudication of law and facts, rather than on the skills and proficiency of practitioners.  However, several existing scholarly studies that have already examined appellate brief writing and correlated subjectivity and readability to favorable outcomes.  In their study, Spencer and Feldman now bring the empirical lens to state and federal trial court briefs in order to determine whether a positive association exists between brief readability and case outcomes.  Here, they frame two hypotheses.  First, “[i]ncreased brief readability will lead to a greater likelihood that a party will prevail on a motion for summary judgment.”  Secondly, “[w]hen the moving party’s brief is more readable than the non-moving party’s brief, the moving party will be more likely to prevail on a motion for summary judgment.”  With these hypotheses raised, they embark to test their hunches.

Spencer and Feldman use cognitive theory to explain their hypotheses.  Because the brain processes familiar and unfamiliar information differently, the fluency of information presented affects whether a person would process new information associatively or analytically.  The more fluent the information presented is, the more one tends to process associatively, and vice versa—the less fluent, the more one processes analytically.  In writing, fluency can be affected by formatting and “the look” of the document—as predicated for example by font, color, and spacing—as well as readability-related characteristics such as length and complexity of sentences, grammar, and vocabulary.

From here, the authors outline the research method they designed that includes their reasoning for examining summary judgment briefs, a protocol for selecting briefs for their sample, and the definition and coding of variables.  In total, they looked at 654 total briefs in 327 cases from both federal and state courts.  What Spencer and Feldman found was that “[w]hen the moving party’s brief was more readable, the moving party was typically more likely to prevail[.]” Also, “[m]oving from cases where the moving party’s brief is significantly less readable than the non-moving party’s brief to the opposite situations, the likelihood that the moving party prevails on the motion for summary judgment more than doubles from 42% to 85%.”  Both findings appear consistent with their initial hypotheses.  The authors explain alternative theories for these results but ultimately dismiss those theories for the correlation they reached.

For lawyers and advocates, this study presents an important focus on effective and presentable writing in litigation.  However, although Spencer and Feldman’s study does not prove a causal relationship between readability of briefs and favorable case outcomes, the authors do call out that the strong correlation raised here does bolster “the ever-increasing emphasis on legal writing instruction in law school curricula, the ABA standards on law school accreditation, and continuing legal education programs.”  Thus, this study lends credibility for elevating the profile and status of legal writing colleagues in law schools across the country.

In reading Spencer and Feldman’s article, I was reminded of the old schoolhouse phrase, “neatness counts”—but here perhaps it’s “readability counts” that is more appropriate.  With readability highly influenced by the proficiency of legal writing, what this study eventually provokes in me as a doctrinal law faculty member can be crystallized into two thoughts.  First, I have a question: does readability correlate to final examination grading or am I as the grader of my final exams doing something else in the grading process (such as assessment) that is conceptually and functionally different from the adjudication process?  Secondly, if readability does correlate to exams (even if I am assessing competency rather than adjudicating cases), then knowing how to affect fluency and readability would be an intrinsic part of the art of lawyering, factoring into the choices and strategies a legal thinker makes in advocacy.  I would see that, other than teaching doctrine, imparting such skills would be part of my job as well.  Teaching it effectively would be another way to help my students engage with the law and help empower them.  Ultimately for me, it is this correlation, drawn from Spencer and Feldman’s study, that resonates most with me.  In this way, beyond “readability counts” for practitioners, their study is also very significant for the teaching of effective lawyering.

 

Review: The Science of Equality, Vols I & II

Review: The Science of Equality, Vols I & II

By Tonya Kowalski, Washburn University School of Law

Rachel D. Godsil, et al., The Science of Equality, Vols I & II

Attendees at this past summer’s biennial ALWD conference had the great fortune to learn about the latest research on addressing diversity-related challenges. Among the featured speakers was law professor Rachel Godsil, who identified very specific strategies for addressing bias in education, particularly implicit racial bias and related phenomena.

Prof. Godsil and her colleagues at The Perception Institute have published a series of highly readable, persuasive, and practical reports on these pernicious barriers to education. Among these reports are two volumes of The Science of Equality, linked below. Each report synthesizes and assesses the research, but also describes a series of empirically supported strategies for intervention.  For example, Volume 2 offers a simple, low-cost strategy for educators to use when providing written feedback. The “wise feedback” approach couples messages about high expectations with expressions of confidence in students’ ability to meet those expectations. Studies show that such messages vastly improved response rates and quality from students in a particular marginalized group.

The topics and strategies range from institutional to individual. Readers will find an array of proposals suitable for both classroom professors and administrators.

Notes and Links:

  • The Science of Equality in Education: The Impact of Implicit Bias, Racial Anxiety, and Stereotype Threat on Student Outcomes
  • The Science of Equality Vol. 2: The Effects of Gender Roles, Implicit Bias, and Stereotype Threat on the Lives of Women and Girls
  • Additional publications
  • ALWD is the Association of Legal Writing Directors
  • This post’s author is currently an ALWD board member but has no personal stake in The Perception Institute.
Review: Reframing the Socratic Method

Review: Reframing the Socratic Method

By Tonya Krause-Phelan, WMU-Cooley Law School

Reframing the Socratic Method by Jamie R. Abrams
64 JOURNAL OF LEGAL EDUCATION 562 (2015)

Reframing the Socratic Method offers a fresh idea to redesign the Socratic Method from a professor-student exercise into an exercise that fosters diverse participation and develops essential lawyering skills. Professor Abrams acknowledges that the Socratic Method, used by law schools for over a century, has become the quintessential example of question-based learning. But contrary to many modern critics of the Socratic Method, Professor Abrams does not disparage the Socratic Method or call for its elimination. Nor does she endorse it. Instead, she encourages professors to restructure the Socratic Method in three ways to ensure it aligns with current innovations and reform: make it client-focused, research-focused, and skills-sensitization focused.

First, Professor Abrams suggests that the Socratic Method should focus primarily on the client, instead of the case. Traditionally, Socratic dialogue begins by asking the student what happened in the case which causes students to think about the case abstractly. As a result, students do not consider the case from the client’s point of view. Further, it does not permit students to scrutinize the decisions made by the lawyers in the case. With a few simple changes, professors can move the Socratic Method from a rule-based to a client-based task. Instead of asking students to recite the facts of the case, a client-based Socratic approach asks the student to explain what happened to the plaintiff or why the plaintiff sought counsel.  These modified questions still highlight the relevant facts of the case, but they allow students to understand the facts from the client’s point of view as well as to consider the attorney-client relationship.

Next, Professor Abrams recommends that instead of using the traditional Socratic Method approach to focus on case outcomes and hypothetical questions, the Socratic questions should be changed so that students use relevant legal authority to represent the client. Instead of asking a student to recite the court’s holding, students should be asked what precedent, the client’s lawyer would have found in preparing the client’s case. These modified questions, propel students to analyze the legal authority relied upon by the court, to understand how the precedent negatively or positively affected the client, and to understand the historical and social underpinnings of the legal precedent. To further insert research-based components into the Socratic dialogue, professors could require students to apply information contained in the case footnotes or to prepare supplemental material to answer research-focused questions. This allows students to develop the ability to assess the strengths and weaknesses of a client’s case.

Finally, Professor Abrams proposes that professors modify the Socratic dialogue to sensitize students to the broad range of legal skills needed to lawyer effectively. She acknowledges that this type of questioning may not be practical in every case. But when possible, the professor should ask questions that guide students to think about effective lawyering skills. These refined questions could range from what role settlement negotiations play in a client’s case to understanding the relevant ethical rules used to determine who the client is and how to meet the client’s objectives. Professor Abrams illustrates how reframing the Socratic Method in a commonly-taught constitutional law case, Reed v Reed, changes the dynamic of instruction from professor-student to student-propelled focus on the client, legal research, and effective lawyering skills.

Professor Abrams explains that reframing the Socratic Method achieves three benefits. First, it allows for coherence and continuity to legal education. Second, it trains practice ready lawyers because students will be better prepared to tell the clients actual answers to actual questions and they will be sensitized to how intensive legal research truly is. And third, it creates inviting and inclusive classrooms. While detailing specific examples for each type of modification she recommends, Professor Abrams illustrates how easily professors could modify the manner in which they already use the Socratic method to accomplish the current goals of innovation and reform.

 

 

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