Silence and group work in legal education

I wasn’t able to attend the AALS (Association of American Law Schools) meeting this year—an annual gathering of thousands of law professors. As a sort of substitute, I’ve been saving an article to read from the Journal of Legal Education, the AALS’s journal on legal education, the legal profession, legal theory, and legal scholarship.

The article is A. Rachel Camp, Creating Space for Silence in Law School Collaborations (volume 65, 2016). Professor Camp co-directs the Domestic Violence Clinic at Georgetown. Here’s an informal outline of the article:

  • the importance of collaboration to lawyers
  • the relative dearth of collaborations and (especially) thoughtfully managed collaborations in legal education
  • the problems students experience with an overly individualistic and competitive culture in law school
  • countervailing forces encouraging more collaborative work in law school
  • the difficulty of collaboration in a somewhat dichotomous world of introverts and extroverts
  • why a seemingly easy solution for collaborative work—brainstorming—produces surprisingly bad results
  • several teaching methods for effective collaboration and group work, avoiding the weakness of brainstorming and capitalizing on ideas from both extroverts and introverts
  • a clinical model of thoughtful collaboration in the Domestic Violence Clinic

Collaboration is intertwined with the skill of listening, which is what drew me to this article. And it turns out that listening can actually be part of the problem with group work as it is often practiced.

For the following scenarios (thought up by me and inspired by the article), assume the following: Professor X has just told the class, “Break into groups of three and critique this draft paragraph. Then come back to share your group’s suggested improvements.”

Scenario 1: 

Student A, B, and C start reading the paragraph. Student A reads quickly and begins to share critique before B and C have looked up from the paragraph. All three eventually share some thoughts. When it’s time to pick a group speaker, Students B and C defer to A, who paraphrases the ideas that A previously stated.

Scenario 2:

Students A, B, and C start reading the paragraph. Students A and B begin to bounce ideas off one another. Student C does not attempt to speak. When it’s time to pick a group leader, A and B decide that B can speak for the group and ask C if C is okay with that. C nods.

Scenario 3:

Students A, B, and C start reading the paragraph. Student A suggests that all three of them brainstorm as many ideas as they can, not criticizing anyone else’s idea but just adding. The group quickly agrees to this method, and Student C goes first. Students A and B then add a few follow-up ideas. When it’s time to pick a group leader, B agrees to sum up their ideas.

So which of these scenarios left students feeling the most satisfied with their brainstorming? In order from most to least satisfied, it would go like this:

Scenario 3

Scenario 2

Scenario 1

And which of these scenarios created the best ideas? In order from best to worst ideas, it would go more like this:

Scenario 1 or 2

Scenario 2 or 1

Scenario 3

Why is this? Classic brainstorming feels satisfying but produces the worst ideas. That can’t be. Actually, Camp’s article reviews the surprising results of research:

[N]early all studies have found that group brainstorming leads to lower productivity when compared with the combined productivity of . . .  individuals brainstorming in isolation.

Group brainstorming is ineffective for several reasons suggested by the scenarios above, both in the experience it creates and the results it delivers. Not that Scenario 1 or 2 above is much better. In Scenario 1, Student A might have had the best ideas but would be unlikely to get another invitation to work with Students B and C. And in Scenario 2, Student C may have had the best idea of all, but never spoke to share it.

Differences in personality and communication styles are at the core of many group problems, particularly differences in extroverts and introverts. These differences may cause conflict and even resentment of domineering group members and others considered “social loafers.” In fact, dominant group members may be working in their preferred style, and “loafers” may need time to process.

Thus the interpersonal dynamics in a group can lead to worse results from that group. The biggest weakness is “production blocking,” which means that some ideas are never generated at all or are generated but then lost:

The idea is forgotten and/or replaced while a group member is listening to others, waiting her turn to speak. . . . Listening to ideas shared by others may be distracting and interfere with the member’s independent thinking [or] determining that his idea is not relevant or original . . . .

More subtly, a person waiting her turn to speak may delay fully forming her idea until her turn arrives, by which time the idea may not be as good.

Listening contributes to another problem as well, “pluralistic ignorance.” This happens when “a vocal minority expresses an opinion or idea and the majority group members fail to speak up based on an overestimation of support for that opinion by the other group members.” Basically, someone listens to another opinion, overestimates its support, and therefore does not engage in further constructive discussion.

Camp describes how this problem is related to the “illusion of transparency” (not really a listening problem, more of a speaking and writing problem). People labor under “an erroneous perception [they] are better communicators than they actually are.”  For example, a relatively introverted member of a group may speak up, but that person’s intentions may not in fact be clear to the rest of the group, causing further frustration.

So these are a lot of problems with misunderstandings and inefficiencies in brainstorming and other group work done in intuitive yet ineffective ways. What’s the remedy?

In the law-school classroom, part of the remedy is creating a space for silence.

Camp summarizes some teaching techniques that void early blocking of ideas, and bring out a wide variety of views. Law professors reading this blog post should consult section IV of her article for detailed teaching notes on “brainwriting,” “chalk talks” “the Nominal Group Technique” and alternative brainstorming by email. They will definitely bring out the quiet students and generate a plethora of thoughtful ideas and responses.

As I was reading these ideas, I was thinking they are great for the law-school environment, but there’s not a lot of intentional silence in groups in law-practice. An introvert won’t be assigned to do any brainwriting in a team when practicing law, ensuring that his or her ideas are formed and shared. Partners and supervisors do not carefully construct chalk talks to elicit broad participation from their teams. But even if these techniques don’t translate to practice at all, creating a more inclusive environment for both introverts and extroverts can improve the isolating effects of traditional Socratic and competitive legal education. Professor Heidi K. Brown is another leading voice in this area.

And Camp acknowledges the end goal of preparing future lawyers. She argues that law schools should be teaching collaboration itself as an essential lawyering skill. For example, Camp teaches an in-class seminar on collaboration. She treats it as a skill that can be learned just like fact investigation and client counseling. Camp recounts how this seminar helps students “move past the pervasive assumption—often based on their own past, negative experiences—that collaborative relationships simply ‘are what they are,’” and, if not going well, must simply be endured. Breaking through this assumption means giving tools for better communication. Students assigned as partners examine their communication styles and discuss the results; they also anticipate conflicts in the partnership and make plans ahead of time to anticipate challenges. These seem to me like pretty good practices for any team of professionals preparing to work together.

Collaboration is certainly not a recent phenomenon for some in legal education, particularly in clinical legal education. (Camp cites a 1993 by Sue Bryant as foundational: Sue Bryant, Collaboration in Law Practice: A Satisfying and Productive Process for a Diverse Profession, 17 Vt. L. Rev. 459 (1993)). And lots of people are doing lots of active work in this area. I’ve recently read and benefited from Anne Mullins, Team-Based Learning: Innovative Pedagogy in Legal Writing, 49 U.S.F. L. Rev. Forum 53 (2015). Camp points out that collaboration is not a mandatory part of any law school curriculum. But it’s now one of the options identified by the ABA for law schools to consider when implementing the ABA’s mandate to teach the “professional skills needed for competent and ethical participation as a member of the legal profession.”

__

As further non-legal reading on the topic of effective teamwork at work, see Charles Duhigg, What Google Learned from Its Quest to Build the Perfect Team, New York Times (Feb. 25, 2016). I’ve heard of professors assigning this article to their collaborative teams, and I’ve encouraged some teams I work with to read it as well.

 

 

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