Idea of the Month

Home / Posts tagged "Idea of the Month"
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.


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),; Kenneth Kilbert, Instant Replay and Interlocutory Appeals, 69 Baylor L. Rev. 267 (2017),; Russ VerSteeg & Kimberley Maruncic, Instant Replay: A Contemporary Legal Analysis, 4 Miss. Sports L. Rev. 153 (2015),; Mitchell N. Berman, Replay, 99 Cal. L. Rev. 1683 (2011),; 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),; 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),; S. Christopher Szczerban, Tackling Instant Replay: A Proposal to Protect the Competitive Judgments of Sports Officials, 6 Va. Sports & Ent. L.J. 277 (2007),; Bennett Liebman, Reversing the Refs: An Argument for Limited Review in Horse Racing, 6 Tex. Rev. Ent. & Sports L. 23 (2005),; 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),

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:

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

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).

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

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:

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.

“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.

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.

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student And Can Active Learning Render This Question Moot

By Rory D. Bahadur, Washburn University School of Law

Your law class has 60 students.  Within 2 weeks of class you realize that some are weaker than others as you get a sense of the responses to class questions and the responses of small formative assessments.

20 minutes into one class some students understand the black letter concepts quickly and are ready to move on to more nuanced and sophisticated examinations of the doctrine.  Others have trouble grasping simpler even elemental concepts.  What is the appropriate teaching decision at this point?  Should you revisit the doctrine to try to get every student on board or should you teach to keep adding complexity and information to avoid boring some students with repetition of concepts these students already understand?

This continues to be a challenge to many professors and I guess in a very unscientific manner my solution was to consider myself having done it right if on my student evaluations “a few” students said that I went too quickly.  That way I felt only a few complained and the pace was therefore not too slow for the majority/middle.

More recently I have taken to doing the traditional teaching at a pace that suits the students who are getting the material the fastest.  This takes about 1/2 the classroom time that I would need if I was doing the same presentation for the majority/middle.  At this point some students look at me and are woozy from information overload.

At this point in the lecture I divide the class into groups of 3-5 students. These groups are different each time and are randomly created and consist of students all along the spectrum of doctrinal understanding.

I then handout a series of short problems based on the material we just covered way too quickly for most students to feel comfortable.  The first problem is very basic but each becomes slightly more complicated.  Each group assembles in a particular region of the classroom and each group is required to do each problem.

For example after teaching the basics of assault and battery in torts I distribute the following problem set to the groups.

Problem Set

I ask each group to type up the perfect answer to each problem.  After each problem in italics are the substantive concepts I hope the particular problem invokes.

After about 15 minutes of group work we begin to discuss the hypotheticals.  As a group the students respond to the questions and one student from each group reads the typed up group answer.  When they are done I ask if any groups disagree and why with the explaining group’s conclusions and reasoning.  I do this for each question and I simply moderate the discussion without leading it.

The following pedagogical concepts are engaged in the process:

  1. Collaborative work as they are chatting and collaborating about the doctrine to come up with the answers
  2. Experiential work as they are problem solving
  3. Students take the role of teacher. People who understand concepts and come to the answer quickly are questioned by those who did not within the group.  This explanation or verbalization of concepts to explain to others requires an understanding of the material.  And as all of you reading this know if you want to learn a subject then try teaching it.  Remember the first time you taught any class how much learning occurred.  LoL
  4. Active learning, students are engaged in learning activities that they do at their own pace and they develop their own contexts for understanding the doctrine not those of the perceived “uncool, geriatric lecturer” in the room.
  5. The groups are less formally hierarchical and lower pressure than the typical law school classroom

Basically this active portion of the class renders the “to whom do I teach,” question irrelevant because the students who got it are learning it even more thoroughly by having to explain it and the students who did not get it when I taught it have the opportunity of another method of delivery of the concepts.

The hardest part about this for us ego driven professors is realizing that after my initial teaching of the concept those students who don’t understand it from me may never understand it from me so why get in the way of their learning and waste class time by stagnating the learning and braying about the doctrine repeatedly.

Forget Waldo – Where’s IRAC?

Forget Waldo – Where’s IRAC?

By Alice Burke, The John Marshall Law School

Students new to law school are bombarded with new concepts and sometimes, their accompanying acronyms.  None of those acronyms seems to strike quite the same terror as IRAC.  For some students, the concept of IRAC is as elusive as Waldo.  The fact is, it doesn’t have to be.   If students simply know where (and how) to look, IRAC can materialize before their very eyes.

IRAC is not all that new to legal writing.  Many law schools were teaching students to organize their analyses using IRAC thirty years ago.  Many of those students can now be found sitting on federal and state benches across the country.    And guess what?  They’re still using IRAC to organize their legal writing.  And guess what else?  Their judicial writing is readily available to students everywhere in reporters, on electronic databases, and on court websites.

Students who want to see what IRAC looks like need go no farther than the nearest court decision.  If it originated within the last twenty years, chances are they will see an example of one of IRAC’s many permutations in action.  As a Writing Specialist helping students adapt their existing skills to the new dialect that is legal writing, I use many different approaches to help students understand how to incorporate IRAC into their papers.  And as you would expect, we spend many advisory sessions looking at student papers.  What you might not expect, however, is that some of my most fruitful advisory sessions have been spent looking closely not at the students’ papers but at the court cases that they are using to support their analysis.

When IRAC remains elusive to students, I invite them to take out one of their controlling cases, and we use that decision to “discover” IRAC.  Together, we find where the discussion begins, and identify the global rule statement.  We notice whether the court breaks the global rule into discrete elements, or explains away parts of the rule that for one reason or another are not relevant to the issue before it.  Then we move through the opinion to the first issue before the court.  We note how the court identifies the discrete issue, and segues from there into the governing rules of law.  We observe how the writer has narrowed the focus to a single part of the overall issue, and witness how case citations are woven into the paragraph.  We notice whether the decision uses multiple paragraphs to discuss the applicable rules and how the court uses the facts of precedent cases to illustrate how the rule works.

Then, we note where the “rule” portion of the discussion gives way to “application.”  We pay attention to transition words like “Here,” or “In this case,” that signal this shift, and then note how suddenly we start seeing far fewer italics (indicating decided cases) and far more proper nouns (indicating the parties in the case before the court).  We study how the court compares and contrasts the case to previously cited cases before reaching a conclusion on the issue.

If we are lucky, the decision then goes on to consider another element or factor.  We can look at how the opinion transitions from one to another and then I ask the student to tell me where the opinion identifies the next issue, outlines the governing rules, applies those rules to the facts before the court, and arrives at a conclusion.   Frequently, this provides the breakthrough the student needs to understand how IRAC works (and to convince them that it’s not some crazy thing their professor came up with but that nobody actually uses) and to use it to structure their own analysis. I encourage students to be alert to the presence of IRAC in the many cases they read for their legal writing classes as well as in their doctrinal classes so that they can begin to see its many subtle variations. Short of putting a distinctive red and white striped shirt on it, it is the best way I have found to help students find IRAC.



An Exam Debrief Exercise for Getting Students to Think Like Graders

An Exam Debrief Exercise for Getting Students to Think Like Graders

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

Two weeks ago, I finished my midterms in first-year Contracts. Instead of doing the usual exam debrief the next class day, I tried something new that I very admittedly borrowed from Professor Allie Robbins at CUNY Law. Rather than merely walking through the essay problem and explaining the issues and answers, my students graded sample partial exam answers based off the exact same essay problem I gave them on the midterm.

My Contracts midterm this fall covered the major formation issues (governing law, manifestation of mutual assent, and consideration). For this exercise, I wrote up two sample answers addressing only the mutual assent issues (i.e. offer and acceptance). Both sample answers hit the issues and discussed the facts and analysis similarly. On the substance alone, both answers would have likely received the same score for issue spotting. However, Sample Answer A was much better organized and discussed the issues using a very detailed IRAC structure, while Sample Answer B was less well-organized, often failed to follow the IRAC format, and in essence, was a sloppier answer.

Since they had already taken the midterm and we had already discussed the entire essay, they were already familiar with the essay problem and particularly its coverage and analysis. With the two sample answers and grading rubric in front of them, I gave them 10 minutes in class to grade both answers.

My goal was to show them that organization is really important and that an otherwise good answer can lose points can be lost if the grader cannot readily find it. My students were surprised, at first, at how hard it is to grade an answer. My sarcastic response (“Yay, happy holidays to me.”) drew some irreverent laughter. But the more important response was the shift in my students’ perspectives from thinking that the exam was where they illustrated only what they knew about the subject matter to understanding that the exam was also where they had to demonstrate their knowledge in the most effective way—in an organized manner that can better display their mastery of legal reasoning.

When I polled the students for which answer they preferred, the overwhelming choice was Sample Answer A, the more organized, structured answer. Their preferences for Sample Answer A were followed by responses such as, “Answer A is much more effective and easier to read,” and “The writer for Sample Answer B really didn’t sound like a lawyer.”

I told them that format and structure counts on my exam: “So you see how Sample Answer A is likely going to get a higher grade because what I’m also looking for is effective legal reasoning?” I revealed to them that I didn’t think Sample Answer B would fail, but if it wouldn’t have received as high of a grade than Sample Answer A. “And if you’re going to spend all that time and energy on my final talking about the same things, why would you not aim for higher?” Students also noted that following the IRAC format more closely seemed to allow Sample Answer A to craft more precise rule statements and juxtapose law and fact for a more balanced analysis. Sample Answer B, on the other hand, tended to ramble. On law school exams, format and structure does makes a difference. Hopefully, this exercise did get my students to be much more motivated on developing their IRAC and essay organization skills for their fall final, alongside their ability to understand the doctrinal material. Happy holidays to me.

At CUNY Law, Professor Robbins uses this exercise also in bar support to show bar takers why a well-structured and organized answer would make a difference to a bar grader with hundreds of essays to grade and only a few minutes to grade each answer. My variation brings this into the first-year classroom. But in both settings, the exercise hopefully tries to convey that on exams, it’s not just what you say, but also how you say it that matters.


Random Thoughts About Resistance To Active Learning

Random Thoughts About Resistance To Active Learning

By Rory D. Bahadur, Washburn University School of Law

“Active learning is generally defined as any instructional method that engages students in the learning process. In short, active learning requires students to do meaningful learning activities and think about what they are doing . . . .”  Specifically, it “refers to activities that are introduced into the classroom.”  It includes but is not limited to “small group discussion, debate, posing questions to the class, think-pair-share activities, short written exercises,” and generally involves in-class problem solving, student formulation of their own questions, and in-class brainstorming.”[1]

If you aren’t doing things described above or like the things described above, then you aren’t doing active learning.  Period.   So, in this regard “interactive” classroom atmospheres are not substitutes for active learning classrooms.  Interactive learning simply means that a student interacts with a professor.  You ask a Socratic question and the student answers and boom you are engaged in interactive learning.  You have a lively humorous bent to your presentation and again this satisfies the definition of interactive.

Interactive classroom techniques still tend to be professor driven and are simply thinly disguised versions of the typical classroom hierarchy which is the opposite of active learning.  If you find yourself describing effective teaching around observations of your class room that include, “I was funny,” “they liked my slides,” “I was so energetic they had to pay attention,” or even “I gave them context for what they were learning,” you may be engaged in some other pedagogical process but not active learning.

As long as you continue to believe that effective learning depends on your mouth moving or you being the source of the knowledge or even the source of the understanding of the material then you cannot be engaging in active learning.  The hardest part about transitioning to active learning is realizing that given the right guidance or exercise structure, the students in your classrooms are all capable of gaining the knowledge you are seeking to bestow upon them with less direct involvement from you than you currently believe is necessary.

This is a humbling experience for most of us.  It may be high time to really think if ego and our need to be necessary prevents us from letting go and whole heartedly engaging in active learning.  The doctors can’t be wrong after all as there is a massive trend in medical schools to make active learning the primary pedagogical technique.  Of course, they are meeting resistance as well because their equivalent of Langdell is reaching out from the grave with a heavy inertial hand.  It is worth remembering that Langdell prescribed Socratic teaching for law students about ten years after the Emancipation Proclamation.  I hope that we do not feel unnecessarily bound to pedagogies and norms from that era.



Teaching Lawyerly Grit

Teaching Lawyerly Grit

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

Each fall in my Contracts course, when all of my other colleagues are giving midterms and thus committing themselves to early assessment of student performance, I deviate slightly from the norm. It’s not that I don’t do assessments or believe in early assessments—I actually start on that on the very first day and build many moments during the semester for such purposes. And it’s not that I don’t believe in midterms either—in fact, the exercise I will show you here does involve a midterm—but I use my midterm in Contracts very differently. I use it as a lesson on lawyerly resiliency and resourcefulness.

The midterm I always give in the fall is non-graded, but content-wise it tests all the doctrine that we’ve studied up and until the day of the exam. The test is supposed to take up 45 minutes of a single one-hour-and-fifteen-minute class period. The issues up for grabs include all of mutual assent (offer and acceptance), consideration, promissory estoppel, and contract modification—in both common-law and UCC Article 2 variants (and yes, that means Battle of the Forms, for those commercial law nerds out there). The midterm has both a standard racehorse essay and a set of factual multiple-choice questions. It is a closed-book, closed-notes, and closed-everything exam. It’s difficult; it’s awful; it’s indicative of my final exams, which means even I wouldn’t want to take it myself unless my life depended on it.

I administer the exam as usual. Even though it’s non-graded, my students usually take it seriously enough and have studied for it. And truthfully, I appreciate that. In the minutes before the test starts, I will hear some of them reciting rules and asking each other doctrinal questions. A day or two before, I might have seen a copy of my practice midterm packet strewn somewhere in the law library. On test day, they take their seats, put away their outlines and notes, and crack open their laptops.

What they don’t realize is that I have purposely drafted an exam that is so difficult and intense that it is—in all honesty—nearly impossible to finish within the time allotted. I have done my due diligence to set them up for failure.

But the difficulty of the exam content is only half of this exercise. Somewhere during those 45 minutes, as my students are typing away their answers, I surprise them by stopping the exam with a simulated disaster—usually a fake laptop crash or a power outage. I tell the students who have been typing fastidiously away that their laptops have crashed, while I immediately start passing out a pile of fresh bluebooks that have been hiding under the lecture hall podium. “Take a few. You’ll need to finish the exam by handwriting the rest of your answers.” At this point, the students who had opted to handwrite the midterm are trying hard not to smirk.

When I started law teaching, I did this exercise repeatedly with the goal of developing student examsmanship on law finals and bar exams. The inspiration for the simulated laptop crash came from personal experience because it happened to me during my first day of the California bar exam. Luckily, we had practiced for it. So although it wasn’t ideal, I knew what to do to persevere through that dilemma and pass a high stakes exam. When I began teaching academic support, I started simulating laptop crashes (and a parade of other horribles) that could potentially happen to derail an exam session. Even now, going into my sixth year of teaching first-year Contracts, I find this exercise to really have an impact in helping students develop exam-taking strategies and realizing that technology does not displace good old-fashioned legal reasoning. But in recent years, this midterm exercise has taken on more resonance as I use it as a springboard for talking about resourcefulness in the legal profession.

After the midterm exercise is truly done, I usually don’t debrief the context of the exam. I leave that to another day. The tension in the classroom is too thick. The collective anxiety on the faces of those who have just experienced a small disaster during a fake session of high-stakes testing needs to be dissipated. “Just think if this happened on an exam that counted—like a final or a bar exam,” I say. “Aren’t you glad this counted for nothing?” The first line doesn’t usually fetch a laugh, but the second one always does.

What I do in the remaining class period is discuss what it was like for them to take the exam and to debrief strategies on what to do when bad things happen in high-stakes exam scenarios. I tell them my joke that the first year of law school seems like the facts from the Palsgraf case—where seemingly things that can only in one’s imagination go wrong often do. Of course, I’ll get responses that are seeking my answer to the type of questions like, “If my laptop breaks during an exam, do I need to start over?” or “Who will fix my laptop after the exam?” But after I address those questions, I bring the lesson to a larger, more resonant take-away: that in law practice, where things can be more hectic than a round of first-year midterms, where feelings and passions can run high, and the stakes are larger than failing a bar exam, one must develop an emotional intelligence toward resiliency and resourcefulness. Sometimes professional expectations continue despite mishaps and setbacks. You might think you’re ready to take down an exam, but it could be the exam that will try to take you down. So what will you do about it? What will you do when it’s not an exam taking you down, but some emergency, some major shift in a case, or some set-back in negotiations that will try to impede your ability to represent your client? Where is your true grit?

Occasionally, I’ll get an e-mail from a former student recounting laptop malfunction during a final or bar exam. It’s always a thank-you e-mail. But it’s not the thank-you part of that message that I am looking for. Instead, it’s the part describing that, despite whatever that happened, the perseverance and a cooler head prevailed, and all was fine because of it.


Steering Students Back to the Rule

Steering Students Back to the Rule

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

It’s undeniable to me that each incoming class of 1Ls that I’ve ever taught has always exhibited a collective personality of its own from the prior one.  Despite this, I’m also amused by a commonality that each first-year Contracts class has shared with me—at least in the first semester of law school.  Whether it is because I teach in Massachusetts (where the politics can sometimes be loud, colorful, and brash) or whether it is just that law students—and lawyers, by extension—are intrinsically a breed of vocally assertive people, my first-year students always enter my class with a fervor to argue that they are legally “right” about a contract dispute, even though they are untrained and usually have little background in the subject area.  They like to reach for their gut instincts based on the facts they read in cases or hypos I give them.  They don’t always tend to realize that they’re to learn the law.

On the one hand, it’s great that they have this built-in passion for opinion and advocacy.  It shows me that they have energy and appetite for lawyering.  But if not soon reinforced by a method of legal reasoning (perhaps even à la “thinking like a lawyer”), this passion can also lead to bad habits and imprecise, undisciplined lawyering.

My lesson here is about how to train and direct students early on to remember that when they are faced with a legal dispute or hypothetical, their first strategy is to not go to their gut instincts and raw passion, but to go strategically to the law.  Thus, when they are given a fact pattern, they are not arguing why one side should prevail based on their own reading of facts or their own sense of justice or fairness, but that they first examine what rule of law might be pertinent for grafting onto this particular set of facts in order to come to a lawyerly conclusion.   This is a basic skill of legal reasoning that can be obscured by the excitement of starting law school, the mysterious (and sometimes confusing) nature of Socratic lectures, and the intensity of the first-year curriculum.  But by the end of the first year, if students don’t realize in a disciplined way that they always should go back to the rules, then their law courses have done them a disservice.

One way in which I have addressed and developed this habit of “going back to the rules” is by often introducing a new doctrinal unit with a “master” fact pattern hypothetical I can use to demonstrate a classic scenario that involves that new doctrine.  The reason I call this hypo a “master” fact pattern is because I will give it to students to try solve the problem when they don’t have the doctrinal rules yet, then use the same fact pattern to introduce and teach them the doctrine, and lastly re-visit the fact pattern as we get into the cases and pose variations on the hypo that illustrates the nuances in the doctrine.  My hope is multi-faceted:  First, without knowing the particular rules of law, my students first see the factual hypothetical and anticipate a resolution based on their gut reactions.  Then as they are taught doctrine in tandem with the hypothetical, they now have an active moment of discovery where the particular legal rules and doctrine reveal how the hypothetical might be resolved in a lawyerly way.  It’s also a good moment to emphasize the utility of the law and to redirect their instincts to reach for the law first, instead of resorting to arguing facts or fairness.  It can also be a good place to critique the law and bring in policy or demonstrate lawyerly analysis.  Lastly, now that they know the rules in tandem with a factual scenario, the variations on the fact pattern continue to reinforce their sense that they should always be thinking, “What’s the rule or doctrine?” at every step of the way.

One example of this is when I teach the unit on U.C.C. 2-207 Battle of the Forms to my students.   The unit is sequenced after we’ve gone through the mirror image rule for contractual acceptances.   Before unleashing the U.C.C. provision on the students, I start with an in-class hypo that involves a sale of goods between a wholesaler supplier and a product manufacturer.  Despite firm and identical agreement of the type of goods, price, and quantity, the problem involves differences in the boilerplate fine print on the back of the parties’ respective documents.  Students will know that under the classic mirror image rule there’s no contract technically.  But if I tell them that issues like this occur in business transactions countless times every day, involving tens of millions of dollars, they are usually perturbed and left trying to figure out what do we do when these parties incur liabilities, such as a product defect.  What do we do?

I like to stir up controversy because it usually makes them pay attention.  That’s when I tell them that as lawyers we have to go back to the law, and I then introduce 2-207 under the U.C.C., whose purpose, among others, is to resolve issues such as discrepant fine terms.  Then, we work through the fact pattern.  What I’ve essentially done is to first give my students a problem without the law, then incite their outrage or passion or inquisitiveness, and at last systematically direct them to reach for a legal solution by going to the rules rather than analyzing the facts first.  Use your brain, folks, particularly your left brain.

This works well as an assessment tool as well.  In most courses I teach, I usually begin with the first day with a fact pattern that runs through from A-to-Z all of the major issues of the subject area.  I make my students answer the question even though they don’t know the law yet.  I want them to feel inadequate without the rules of law that would otherwise help them investigate and problem-solve like lawyers.  Then gradually as we move through the semester, I will often find appropriate moments later, perhaps after we’ve learned a few units, to pull out that same fact pattern and ask them again to examine the problem and see how much better they can resolve the hypo now that they have had some law.  At the end of the semester, we usually look through the same problem one final time and hopefully students will have a good assessment tool for gauging how much doctrine they know now to analyze the question as well as a fundamental understanding that a basic strategy in legal reasoning is to reach for the law first.


Do NOT follow this link or you will be banned from the site!