Deliberate practice and lawyering skills

This past weekend, the Legal Writing Institute hosted its second Biennial Moot Court Conference at John Marshall Law School in Chicago. Several of the talks touched on listening-related themes. Kent Streseman of the Chicago-Kent College of Law explored the concept of “deliberate practice” for moot court competitors. His summary of the tenets of deliberate practice could be useful for anyone who wants to improve their mental dexterity and ability to think on their feet. 

I once heard Rutgers Law professor Ruth Anne Robbins refer to moot court with an analogy to “muscle memory.” In sports, building up muscle memory can be a good thing—or a bad thing. If you learn how to swim the wrong way and then repeat the mistake over and over, she said, you won’t become a better swimmer no matter how much you practice. (Likewise for lawyers preparing presentations and arguments, creating wordy PowerPoint slides and then silently reading them to yourself may not be the path to great public speaking.)

In his Chicago talk, Streseman made a related point about sub-optimal practice: Even practicing correctly but in the standard, same way over and over is not going to produce results, especially if it’s ill-informed to begin with. Repetitive practice doesn’t help a learner progress beyond a certain fixed point, and in fact, “skills tend to regress.” 

The “gold standard” of preparation is “deliberate practice,” a concept from Anders Ericsson’s work summarized for a popular audience in Ericsson’s Peak: Secrets from the New Science of Expertise. The purpose of deliberate practice is to yield expert performance:

The hallmark of expert performance is the ability to see patterns in a collection of things that would seem random or confusing to people with less well-developed mental representations.

To build up these mental representations, you need deliberate practice. In his talk Streseman outlined some of the conditions of deliberate practice:

  • The practices must be challenging, with the learner giving their full attention to a task demanded beyond the edge of their comfort zone.
  • The feedback needs to be informed by experts’ accomplishments and understanding of what they themselves do to excel.
  • The feedback must be followed by the opportunity to modify the performance in response, and to recover and reflect on the practice.

These types of focused practices lead to more effective mental representations of the argument in the competitor/advocate’s own mind. And having those effective mental representations mean the competitors can react more quickly to questions and make better decisions on what to say next and how.

The closest connection to listening seemed to be the crucial fact that deliberate practice requires the learner’s full attention. Moreover, the learner has to actually listen and adjust to the feedback provided. Speaking and speaking and speaking again without attention to feedback may be practice, but it’s not deliberate. You can do that in front of a mirror or your dog, and we all know sometimes that’s what a person needs to initially prepare. As beginners approach a task, they may need some repetitive practice with no feedback to get into their comfort zone. Once there, they can then start to push beyond that zone.

But rehearsing to a dog is too comfortable. It’s not deliberate practice, as the dog’s feedback is not informed by experts’ accomplishments and methods of excelling. My dog has been a lawyer’s dog most of his life, spanning three owners with a variety of practice experience both civil and criminal. All three of these lawyers were moot court types. But the dog still can’t coach moot court effectively.

Thanks to Kent Streseman for his talk on deliberate practice and moot court, and to John Marshall Law School and the Legal Writing Institute for hosting the conference.  I look forward to reading Peak and sharing any additional insights from delving into it.  I also hope to share more posts from the conference with additional connections to listening. Until then, you can access tweets from me and others at #LWIMootCourt.

 

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