Category: Law school

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Listening in a law-school class

The fall semester has been in session now for two to three weeks. New law students have immersed themselves in class, with 40-50 hours of class logged at this point. It’s the perfect time for new law students to evaluate and adjust their own listening and note-taking during class. Enough time has gone by and enough notes taken that this evaluation will be meaningful, but there is still tons of time left, so any adjustments could make a real positive difference moving forward.

Figuring out how to evaluate your own listening is an abstract and difficult task especially in an unfamiliar academic environment with large classes and assessments few and far between. Actually on that note, law schools have been ordered by the ABA to do more “formative assessment,” meaning assessment before the final exam so that students can monitor their progress, understand how they are doing, and make adjustments. Formative assessments such as a midterm or paper won’t explicitly mention or measure listening, but they can be an important indirect clue about listening skillfulness. Students should be proactive in preparing for formative assessments and should actively seek feedback on their results.

Even before any formative assessment such as a midterm, a new law student can reflect on the classroom experience and make adjustments. One way to give some shape to these reflections is by considering what veterans and experts say. That is why, earlier this summer, I reached out to lawyers and law professors, asking for suggestions on effective listening in class. Suggestions by lawyers on what worked for them can be found in an earlier post here. This post focuses on advice from law professors themselves. What do law profs say students should listen for, in the law-school classroom?

Note, as usual, I tried to delete the “parent tweet” of me prompting the question and as usual my efforts failed. Focus on the responses, not the irritating repetition of my prompt.

 

Please note that another good way to evaluate your own listening is to talk with a academic-support expert. Here’s an earlier post, “Listening 101 for Law Students,” featuring that and more general advice on listening in the law-school classroom.

See also my guest post on The Girl’s Guide to Law School about a unique note-taking method that worked for me personally. I call it the #professorsays method.

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Note-taking advice for law students

It’s that time of late summer when law-school boot camps and pre-orientation prep sessions start happening. I’ll be speaking about legal writing next week and note-taking skills the week after that.

For the note-taking session, I put out a call for help and got some really good responses. Here’s the call for help:

The responses covered lots of good points about note-taking. I’m re-organizing them here into a sort of chronological timeline: getting ready for class, listening in class, and reviewing after class. (Apologies for the repetition of the “parent tweet” asking for help; due to non-existent HTML skills, I can’t get rid of it despite checking the box to do so.)

Before the semester, decide on paper, highlighters, and other equipment.

Effective note-taking has elements of creativity to it, in how you capture the content of what you hear. You may want lined paper, plain paper, or paper organized for a certain note-taking strategy. Someone told me a story about their brilliant law-school classmate who took all her notes on mathematical graphing paper. The point is to prepare in advance with helpful equipment such as paper and pens that will help:

No one really talked about taking notes by laptop, which is a debate too large for this humble post. Extrapolating from the comments above, if you’re going to take notes on a laptop I would advise experimenting with apps that give you flexibility for formatting the page, using color, and otherwise doing more than just writing or typing.

Gain context before class.

The difficulty in listening to learn is that a learner, by definition, lacks the framework of an expert. (It’s sometimes called a schema.) Learners can help themselves build a rudimentary schema before class by preparing generally and specifically.

For general preparation, I was always taught to study the textbook’s table of contents. And there’s always the syllabus!

  1. Beyond the textbook and syllabus, the specific assigned reading itself may provide a framework for understanding what’s about to happen in class. This suggestion from Alex Klein shows the benefit of reading actively before class, rather than reading passively and waiting for class to clear everything up. (Hint: that’s wishful thinking in many cases.)

Listen carefully by focusing on key terms, on classmates’ contributions, and on what the professor says in expressing an opinion.

Is more always better—as in more notes, more accurately reproducing exactly what happened in the class session? #PracticeTuesday co-founder Rachel Gurvich shared a lesson learned from her law-school days:

A complete transcription is difficult and likely detracts from deeper learning while listening. But the difficulty—especially for new 1L students—is knowing what should and should not be transcribed. At first, it may be better to err on the side of transcription:

More experience in the law-school classroom should bring more discretion at what matters most. Experienced note-takers learn to recognize different categories of content as it comes out in class, such as factual distinctions and policy rationales:

Another note-taking skill in the law-school classroom is paying attention to the various perspectives offered, not just by the professor playing different sides of an issue but by classmates:

My own special twist on note-taking was to add a feature I called “professor says.” As I processed what the professor stated and asked, sometimes it would become apparent the professor was stepping out of a neutral role and taking a position on the topic. When he or she did that, I would label that moment in my notes with “Professor Says: ___” Keeping track of those moments helped me to match them up with my notes so I could be mindful of them while studying later. Here’s my guest blog post for The Girl’s Guide to Law School that expands on the “professor says” method.

Use visuals to indicate relationships and other ideas.

One less-than-effective way to take notes is uniformly and robotically writing out text from left to right on every page. A better approach is to practice active, flexible, graphical note-taking techniques:

Review and organize notes after class to prepare for outlining and final-exam prep.

Effective note-taking does not end the moment class ends. Putting those notes in a box until it’s time to study for finals is not the best advice. Rather, the advice is to use those notes sooner rather than later to review and consolidate growing knowledge:

These crowd-sourced suggestions struck me as a good starting place for 0Ls about to become 1Ls. Please feel free to share more note-taking techniques here in the comments or on social media at @ListenLikeaLwyr.

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Law-school learning outcomes for communication

It’s that time of year when elementary and secondary students’ standardized test scores arrive in the mail. The scores should, ideally, correlate to the school’s stated learning outcomes. Elementary and secondary schools are veterans of the push for learning outcomes, and law schools are now required to determine their learning outcomes as well.

Specifically, the ABA requires law schools to develop and publish learning outcomes in a number of areas including written and oral communication:

A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:

(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;

(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and

(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.

Interpretation 302-1 For the purposes of Standard 302(d), other professional skills are determined by the law school and may include skills such as interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency, and self-evaluation.

Interpretation 302-2 A law school may also identify any additional learning outcomes pertinent to its program of legal education.

Thus, outcomes related to “written and oral communication” are mandatory. The law school must also set outcomes for “other professional skills needed for competent and ethical participation as a member of the legal profession.” But determining those other necessary skills stands within the law school’s discretion.

Posted learning outcomes on law school websites show a wide variation, reflecting different preferences in how general or specific outcomes should be. On the streamlined end, the University of Chicago Law School’s Learning Outcomes would fit on half a sheet of paper:

The Law School’s program of instruction is designed to train superb lawyers who will be leaders in all parts of the profession.  To that end, the Law School expects that all students by the time of graduation, will:

  1. Be familiar with the general approaches to the study of law and legal reasoning;
  2. Demonstrate the ability to identify and understand key concepts in substantive law, legal theory, and procedure;
  3. Have the ability to write a competent legal analysis;
  4. Demonstrate the ability to conduct legal research;
  5. Demonstrate communication skills, including oral advocacy;
  6. Demonstrate familiarity with the rules of professional ethics;
  7. Demonstrate professionalism consistent with the legal profession’s values and standards.

Does U. Chicago expect students to be able to listen effectively in a legal context? Item 7 lists oral advocacy—and only oral advocacy—as a specific example of expected communication skills. But standard statutory construction tells us that “including x” does not mean “meaning only x.” Other skills such as listening aren’t excluded, but also aren’t mentioned. U. Chicago’s learning outcomes suggest that oral advocacy holds a special although not exclusive place of honor among communication skills.

On the more specific end of the spectrum, Washburn Law School’s JD outcomes have categories with related goals. The communication category includes not just reading, writing, and speaking, but also listening:

3. Graduates will communicate effectively.

3.1 Students will write in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.2 Students will speak in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.

3.3 Students will demonstrate active listening in communications with others, including legal professionals and laypersons.

Washburn Law also mentions fact investigation and interviewing as core legal practice skills:

4. Graduates will demonstrate competency in legal practice skills.

4.1. Students will demonstrate the ability to conduct legal research.

4.2. Students will demonstrate the ability to conduct a factual investigation.

4.3. Students will demonstrate the ability to interview and counsel a client.

4.4. Students will demonstrate the ability to negotiate and advocate on behalf of a client in appropriate circumstances.

4.5. Students will demonstrate the ability to draft documents used in legal practice.

Even more specifically, NYU Law School has published a detailed scheme of goals for its curriculum, including eight separate goals for its 1L lawyering class alone. Among those goals is interviewing, with several specific references to listening:

3. Interviewing

Effective interviewing of a client or fact witness or other individual requires familiarity with the following skills, concepts and processes:

(a)     Communication skills and processes:

(i)     Listening, and impediments to listening;

(ii)    Questioning:

(A)     Choices and effects of question formulation (open and closed questions, leading and non-leading questions, consecutive and non-consecutive questions, etc.);

(B)      Choices and effects of question sequence;

(C)      Effects of formulation, sequence, and the context of the interview on shaping (consciously or inadvertently) the narrative and the opportunity for the client or witness to tell her or his own story.

(D)     “Active listening” and similar techniques;

(E)     Precision in questioning and answering:

(I)     awareness of imprecision, ambiguity, omission, in one’s own communications and others’;

(II)    techniques for systematic control of levels of precision;

(iii)     Analysis of the possible dimensions of description and inquiry;

(iv)    The psychology of perception, memory, conceptualization, and articulation;

(v)     Analysis of the factors that may affect interpersonal dynamics, including those that may arise in cross-cultural and multilingual communications;

(vi)     Non-verbal communications.

The ABA requires law schools to post these learning outcomes. But in terms of reporting student progress on the outcomes, a detailed quantitative individual report like what elementary and secondary students receive for standardized tests seems unlikely to be required or volunteered by law schools.

The closest I’ve heard to such an option is more student-driven: individualized skills trackers for student use, in particular Nebraska Law’s Build Your Character app. The app is based on the Shultz and Zedeck factors for successful lawyering in eight categories: intellectual and cognitive; research and information gathering; communications; planning and organizing; client and business relations; working with others; and identity. Among other features, it helps students choose classes that match up to skills they want to develop and build an online portfolio for employers.

I’m genuinely curious about additional ways law schools are reporting to students (or the ABA) the students’ individual or collective progress on stated learning outcomes. Please share in the comments or on social media.

 

 

 

 

Law practiceLaw schoolNonverbal communicationProfessional developmentProfessional identity

The Wisdom of Judge Smith

Try to listen twice as much as you speak, because when you are new you don’t have a clue. Listen to what people say and notice what they don’t say. Often their body language will verify or betray their words. Ask questions to clarify, distinguish, expose and summarize.

Judge J. Layne Smith of Leon County, Florida, wrote this open letter addressed to a “New Law School Graduate” in the June 2 Tallahassee Democrat. It’s good advice that takes about five minutes to read and a lifetime to implement. (On that note, cf. John Barlow, The 25 Principles for Adult Behavior.)

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A digression: re-learning to swim

While attempting—as an adult—to learn how to swim properly, the experience gave me a whole new appreciation for what 1L legal writing students go through. The idea of adults trying new things in middle age is a whole genre, found in a variety of essays and books, e.g. What I learned as the worst student in the class and Guitar Zero: The Science of Becoming Musical at Any Age. Law students may or may not start law school in their 40s, but they do bring beliefs, methods, and habits that may or may not help them adjust to legal writing. On this, my final class of the year teaching 1L legal writing, here are some thoughts.

swimmers-swimming-race-competition-56837.jpeg

What you already know—or think you know—can block your learning.

I already “knew” how to swim. As a child, I took just enough swimming lessons to say I could swim. The P.E. teacher stood in the pool and led us in a lot of bobbing up and down, some survival sidestroke, and a little freestyle. Swimming was not an embedded part of my hometown’s culture, though. The local country club closed down and was bowled over to make a Super Wal-Mart. My exposure to swimming over the next 30 years consisted of watching the Olympics. As a result, I had some mistaken ideas.

Take breathing, for example. It seemed like a good idea take stop kicking and just kind of coast while breathing to the side. Swimming is supposed to seem effortless, is it not? This idea was really, really wrong. I also thought I should breathe on alternating sides—a belief that is not wrong, but also not necessary for a beginner. Other issues were far more important to address, such as body rotation and not putting my palm out like a stop sign.

Mistaken and distorted beliefs afflict beginning legal writers as well. Everyone in law school has some kind of writing background, even if it’s been years in between. Memories of long-past writing lessons may bubble to the surface. Some of these memories are good. Yes, a paragraph should have a topic sentence indicating what it’s about, followed by details. That was true in fourth grade and still valuable now.

But some of the writing memories are bad, at least for legal writing. Law students often come at legal writing brandishing a thesaurus because they don’t want to sound repetitive and, they fear, simplistic. In fact as experienced legal writers know, “elegant variation” (a term coined by Richard Wydick) may introduces ambiguity, which most of the time in legal writing is very, very bad. New legal writers should put the thesaurus away and focus more on reading legal language with a legal dictionary at their side. Experienced legal writers can certainly use the thesaurus; they know which words can be varied and which cannot. But that’s the wrong thing to emphasize at the beginning, just as alternate breathing is a skill to save for later in one’s swimming process.

Skills are like muscles.

What you do becomes who you are. Based on years of running, my legs were pretty strong even if orthopedically challenged. But swimming quickly revealed an upper-body deficit. My arms were accomplishing almost nothing. In fact, using arms actually slowed me down at first, as compared to kicking alone.

Similarly in taking on legal writing, students’ past experiences will have contributed to their strengths and weaknesses coming into the course. Those who have been writing lengthy liberal arts papers are more likely to be comfortable bringing in sources, generating content, and highlighting ambiguities. Those who have been working in business may be very comfortable with summaries up front and concise recommendations.

These strengths of each disciplinary background come with weaknesses as well. Spotting ambiguities is necessary but not sufficient to create valuable, reliable legal advice. Concise summaries and recommendations may not go far enough to help a lawyer or client understand the relevant legal context and possibilities.

Learning a new variation of a skill doesn’t mean ignoring what has worked in the past, but it does mean being willing to reflect and modify. Professor Teri McMurtry-Chubb has written a handbook for translating various disciplinary backgrounds into strong legal writing in Legal Writing in the Disciplines: A Guide to Legal Writing Mastery.

It’s harder when people are watching.

Not knowing how to do something can feel very embarrassing. Swimming around other actual swimmers was a psychological obstacle. I would leave the pool rather than share a lane. I saw other people—kids and adults—working with swim coaches. Part of me wanted to get some advice too, but I felt really embarrassed.

When I finally let a swimming coach see me swim, her advice made a world of difference. She quickly diagnosed and suggested specific, effective corrections for the mistakes I was making.

Similarly in beginning legal writing, it can be excruciating for some students to share their work, or any of their thoughts. Raising a hand is the last thing many students would do. Even turning in early assignments just to the professor can be stressful. Just the thought of letting someone reading a piece of writing can interfere with the writing process.

But most of the time, almost everyone in the room is dealing with the same questions and issues in their work. Sharing one’s work is a huge step towards getting a genuine assessment of its strengths and weaknesses. No matter how bad the first attempt, it won’t be the worst piece of legal writing an experienced professor has ever seen. And it probably has some predictable patterns that can be recognized and re-shaped to create much more effective work.

Working with a coach is great, but the coach can’t do it for you.

The coach spent 45 minutes with me and vastly improved the efficiency of what I was doing in the water. She showed me what I needed to be doing with my arms and legs and breathing, correcting my misconceptions. She also let me know about some of the conventions of swimming that didn’t seem important to me but in fact are important to real swimmers. For example, you always touch the wall. Stopping a few inches short because “whatever, it’s just a few inches,” is not what real swimmers do.

As the lesson went on, my brain started to overload and my body started to tire. I got frustrated and may have dropped a particular profane word. The coach could have given me more advice, but I couldn’t learn. She ended with a gentle admonition: “You just need to swim. Are you going to come out here and practice?”

Students must have a similar experience when meeting with their legal writing professors. Skillful feedback can help a new legal writer cut through a lot of ineffective habits. The professor can help the student understand that some practices—such as sticking with the same legally significant term instead of resorting to the thesaurus—need to be accepted for the student to become a real legal writer.

But there’s only so many writing points that a writing conference can cover. At some point, the student (understandably) has maxed out on taking advice. And then the student has to leave the conference, go out, and just write.

Sometimes you need a break. Sometimes you should keep going.

Swimming is really, really tiring. And people who are tired make mistakes. With swimming, at best this means slowing down. It can also mean a noseful of water and coughing fit in the middle of the lap lane. At such moments, the best thing seems to be just to calm down and reset for another try.

And so it is with learning legal writing. Sometimes the writing muscles just get tired. Just sitting at a computer does not lead to writing. As John Wooden once said, “Don’t mistake activity for achievement.” The writing activity in marathon writing sessions may be particularly vulnerable to mistakes. And the problem there is not just sloppy or confusing writing but substantive mistakes that could affect legal advice to a client.

But that does not mean quitting at the first sign of fatigue. It doesn’t mean all mistakes signal break time. Any athlete must push the boundaries of fatigue to improve. As an adult-learner in the swimming world, my workouts are pathetic by lifelong swimmer standards. But challenging myself to do an extra lap or another short set will be what moves me forward.

Similarly with writing, pushing through the frustration is often crucial to making actual progress.

Accomplishment comes in tiny moments at first.

Breakthroughs can be subtle. At some point I started stretching out in front of me and “pulling” more water. (See how I used the word “pulling”? I am pretty sure that’s a real swimming word!) I was able to rotate in the water instead of swimming like a floating ironing board. Progress was slow, but the time in the pool made a lot of difference, and I knew I was getting better.

Similarly for new legal writers, real progress can be halting at first: Read a case and highlighting an important quote. Make an outline and look at how it has a point A without a point B (yikes!). Write a sentence and realizing that it is too specific to start a new paragraph; it’s a detail, not an idea about the law. Nobody else will be there to see these brief flashes, but they are so important.  The progress is subtle and private—but real.

The lesson and the learning are never really “finished.”

I’d like to say I’m a great or even just a strong swimmer now. That’s just not the case. But I’m a lot better. I wear a one-piece, cap, and goggles, and take a lane. I will continue to consult coaches from time to time and work on my own.

Learning legal writing is much the same. At the end of a year in legal writing, the transition is underway but incomplete. There is much to learn from the experts and from continued effort and experimentation. My hope for the students is that they know what to do to get better. My hope is that they feel the satisfaction of gaining a new skill.

Photo Credit: WordPress Photo Library

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“May it please the Court…”

It’s that time of year when 1Ls start preparing for their first oral argument. In a class on how to prepare, I’ll be sure to share this tweet from experienced SCOTUS advocate Bob Loeb of Orrick:

As the card shows, even expert advocates benefit from a sort of security blanket in a high-pressure situation. And precisely because a SCOTUS argument is so important, holding the card gives the advocates a small bit of extra mental bandwidth. They can reallocate this bandwidth to the actual substance of the argument. Of course, experienced SCOTUS advocates do not really need notes for the opening moments of their arguments. They probably never look at the card. But just having the card can provide some piece of mind.

Beginning advocates also need notes, partly to avoid the possibility of going blank.  (This happened to me in my 2L trial advocacy class and it was a lot like this, but scarier.) Beginners are more likely to cling to their notes and read them even when they don’t need to. But ideally, the notes serve a similar purpose to the Supreme Court card. Having them as a backup can reassure the advocate, freeing up mental bandwidth to think more about substance, and maybe even listen more intently to the questions.

There is one difference in the SCOTUS card and cards that 1Ls might make for themselves—a 1L’s creation does not double as a library card:

Question for readers: How do you make sure your notes are a help, not a hindrance, in public speaking—oral argument or any other formal setting?

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Tending your garden

Today my Emory Law colleague Ben Chapman and I launched the fourth iteration of our class, Advanced Legal Writing: Blogging and Social Media for Lawyers. This is a “cool class” (according to an upcoming issue of the Emory magazine) where students explore and practice the genre of legal blogging. Their final exam is to select a legal-blogging niche and then develop a WordPress blog with several thousand words of analytical and expressive content. In preparing my opening remarks for this year’s class, I was reflecting on this blog and what it has meant for me professionally and personally.

I launched Listen Like a Lawyer almost five years ago. (Here’s my first post.) My reason for picking listening as a niche was (1) there are already lots of great blogs about my original area of expertise, legal writing; and (2) listening is a hidden and under-appreciated part of being an effective (legal) professional and person.

The niche is admittedly challenging because it has many audiences:

  • law students who listen to lectures in big classes, then go out and try to work with supervisors and colleagues in externships and activities
  • new lawyers who may be assessed mostly on their technical lawyering skills such as taking depositions
  • mid-level and senior lawyers who need to manage teams, lead their organizations and the legal industry, and network effectively to bring in business
  • in-house counsel who routinely work with GCs and business teams, closing the distance between the business and legal mindsets
  • law professors who teach and write about communication and rhetoric
  • legal professionals such as paralegals and administrative assistants who, like all professionals, work more effectively with strong listening skills and who may face particular issues with hierarchical listening (or non-listening)
  • legal-marketing professionals who often demonstrate superior listening skills to anyone listed above but may also face hierarchies that may distort or block their contributions
  • legal innovators who advocate “disruption” and unbundling and other stuff like that—which ideally will include lots of listening at the design stage and will preserve some role for listening of “the efficient delivery of legal services”
  • professionals and future professionals in all fields who hope to listen to their own inner voices (when healthy to do so) and connect with others

It is quite a challenge to reach these diverse audiences. Luckily I am a law professor who is writing for many reasons, none of which includes delivering a hyper-targeted message to a single audience for marketing purposes. My goals are learning, sharing knowledge, developing knowledge, prompting conversation, promoting better lawyer-client relations, and encouraging more effective collaborative relationships in the legal industry. One lesson to students is to avoid clichés like the plague, but doesn’t this seem like a WIN-WIN-WIN?

I’ve been thinking about the blog a lot as its five-year anniversary approaches in summer 2018. Late last year, I was considering bequeathing it to a new editor or even retiring it. Some reflections over the holidays have convinced me I’m not ready to do that. It’s like my garden, and I enjoy tending it.

That metaphor is a great way to TL; DR the ideas from my scholarly article on legal blogging several years ago:

Traditional legal writing on behalf of clients is like growing a bonsai tree. There is artistry, history, culture, and technical craftsmanship. All of that means there are also a lot of rules. And it’s a creation on a pretty small scale; only a few people may ever see it.

Legal blogging, by contrast, is like a wildflower garden or cultivated rainforest. It’s a different kind of cultivation—which may look totally out of control but actually can achieve some unexpected and serendipitous results. Still, you have to work at it and shape it, or the wrong things will grow (or it will die).

Writing this blog really has led to some serendipitous results, and there is still a lot to say. The current political climate has led to initiatives like #ListenFirst. Through the International Listening Association I have met listening scholars such as Graham Bodie and Debra Worthington, who just published a giant tome on listening research. There is a growing body of legal scholarship on interruptions at oral argument and even what vocal pitch can tell us about the justices’ individual votes. Along those lines, technology is opening new possibilities such as wearable devices that record and quantify the interactions between colleagues. But at the most fundamental level, listening is a way to connect with people, which will always mean something.

So, this year I will continue to write about stuff like communication dynamics at work, specific listening techniques, listening and building community, listening for law-school performance, and listening as part of the legal-writing process. I will invite guest posts if and when I feel like it, and write basically anything I feel like writing about. I will try to stand back every once in a while and enjoy just looking at the result of my labor. And that, for any Law 851 students who may still be reading, is a pretty cool thing about legal blogging.

Someone else thought of the gardening metaphor too, in terms of blogging for business development. I like what they have to say about developing quality content over time rather than going for short-term fixes.

 

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The hothouse of law school

The great law professor Larry Ribstein used to say that legal education has grown within a hothouse. Flora and fauna grow in different ways in a hothouse than in a natural environment.

-William D. Henderson, quoted in Katrina Lee, The Legal Career: Knowing the Business, Thriving in Practice (2017)

For sixteen years I’ve been teaching in the “hothouse” of legal education. I’m certainly aware of differences between how law and legal skills are taught in the hothouse and how they are practiced in the natural environment.

Some of these differences are unavoidable and in fact beneficial. Education is preparation, and preparation can thoughtfully sequence legal topics and legal skills in a way that law practice does not and cannot.

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But some differences between the hothouse and natural environment of practice are not necessary or helpful. It’s an essential part of the law professor’s task to be aware of this difference and make constant calculations about where to situate each assignment or discussion. A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

A class that is all “hothouse” may leave its delicate, coddled students to wilt in the natural environment; a class that is all natural may damage and weaken its students before they have a chance to thrive.

One key to making those calculations is knowing what happens in typical natural environment of law practice. Ann Sinsheimer and David J. Herring did a fascinating study of what lawyers really do at work. Of particular interest to the legal-writing professors, they found that lawyers they spend a ton of time meticulously crafting emails.[i]

Sinsheimer and Herring also found that lawyers spend a lot of time reading—no surprise there. But what they are reading is not nearly as case-driven as expected:

The scope of what these attorneys read was surprising to both the associates and the law student observers, particularly given the emphasis on reading judicial opinions in the traditional law school curriculum. In fact, our law student observers were surprised by the relatively few judicial opinions these attorneys read. Consider, for example, the following excerpt from the 2L observer who followed L, a third year litigation associate at a large law firm:

The types of documents L read varied based on what type of case she was working on and how big her role was within the case. What surprised me most about this was how little time she actually spent reading judicial decisions. While I was there, I witnessed her reading mostly treatises, statutes, case summaries, emails, discovery documents, and secondary sources. She did read some judicial opinions while I was there, particularly when she was researching a legal issue, but not as frequently as one would expect based on the strong focus on what seems like only judicial opinions in law school. A lot of L’s time was actually spent reading documents that most law students never see, such as discovery documents, business documents, contracts, and bids.

Thus, this study points out that legal education may in fact have a “hothouse” problem when it comes to reading. Classes on transactional reading and writing, administrative and procedural skills, and business skills would help bring their experience closer to what they will see in the natural environment.

I think there’s even more of a gap in how listening is approached in legal education versus how it’s practiced in the natural environment.

Yes, there is some excellent training in listening and communication, and I’ll talk about that in a moment. But what do most law students do, most of the time? This is what worries me because this is what I think the answer is:

Go to class. Sit somewhere between 5 and 100 feet away from the professor. Open a laptop. (Maybe) open a chat channel. Take notes. (Maybe) chat with classmates or others. Make eye contact—or not. Take good notes—or not. (Maybe) record the class and listen to it later. (Maybe) ask a question or be asked a question, every couple of weeks at best. Start to gather up books and electronic equipment in the last few minutes of the class as the professor wraps it up. Close the laptop. Leave. Get tested indirectly on listening skills during the midterm and final exam weeks or months later. Never find out if a weakness on that exam was the result of a listening, reading, or thinking deficiency.

This is bad training for listening in law practice.

A student may spend an entire semester never making eye contact, consistently multi-tasking, and never confirming whether the notes they took are accurate or complete. Not to mention the fact that these hundreds of hours spent staring at a screen conditions any human being to . . . want to stare at a screen.

This is a hothouse, big time.

There are some pockets of explicit preparation on listening—some places where legal education is closer to the natural environment of listening in law practice. Simulations and clinics present excellent opportunities for real-world listening skills. I’ve watched a video with Lyn Su of New York Law School where she brilliantly coached a law student on his interaction with a simulated client. That’s just one example of the helpful opportunities that are available for those who take advantage of them.

The Sinsheimer/Herring study did not explicitly address listening skills as such in the workplace. It did, however, suggest that preparation on listening to clients and judges, while better than nothing certainly, is not quite what many new attorneys really need:

Communication skills were fundamental to these attorneys, but the sort of skills they drew upon are not a key part of the traditional law school curriculum. Communicative acts in law school often involve preparation for courtroom appearances or client interviews. In contrast, the sort of communication engaged in by the attorneys we observed was usually intra- and interoffice or business communication. Despite what their law school experience might have suggested, these attorneys made few court appearances and had limited client communication.

So how to get out of the “hothouse” and into more of a natural environment for actively teaching these skills? Having more clinics and simulations is one solution, and the ABA’s new graduation requirement of six experiential-learning credits will definitely have an impact. But students need a lot more than six hours of credit to graduate and could still spend hundreds of hours staring at their screens and typing notes.

One highly promising solution is the idea of team-based learning, where students have to talk and listen to one another in small groups. Working in a small group that is accountable to one another means that each team member’s listening skills (and all people skills) will matter much, much more. Professor Lindsay Gustafson of University of Arkansas-Little Rock has spoken about using team-based learning not for a skills class or clinic but for . . . 1L property class.

I’ll say more in future posts about Gustafson’s work and team-based learning as an escape from the “hothouse.” Professor Anne Mullins of North Dakota has done good work on team-based learning as well.

And I invite comments about what are the right communication skills for the natural environment of law practice, as well as how to teach and promote those skills through legal education.

…….

[i] Legal-writing professors talk all the time about whether memos and appellate briefs are too much like “hothouse” assignments. The rise of the email assignment and shorter assignments in general are a sign that legal-writing classes are evolving to better represent the actual nature of practice. (It can never actually “be” the true experience but only a simulacrum for educational purposes. And that’s as it should be, since it is by definition education and preparation for that experience.)

In speaking, moot court is an excellent advocacy project that is also fairly criticized for being, at times, artificial. An example of a critique is Steven Berenson’s article in the New Mexico Law Journal, Preparing Clinical Law Students for Advocacy in Poor People’s Courts. He argues that students need to be ready to speak in a much less structured and more chaotic environment.

 

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Civil disagreement

In a recent Time editorial, Yale Law Dean Heather Gerken lionized the law school as a bastion of civil disagreement. She cited the uninterrupted speech of Charles Murray at Yale as an example of civility:

Law school conditions you to know the difference between righteousness and self-righteousness. That’s why lawyers know how to go to war without turning the other side into an enemy.

A student group collectively responded, arguing that Gerken mischaracterized their protest during Murray’s visit to Yale and suggesting limits on law’s social and political influence:

If anything, our legal training has taught us that civility has its limits, and that disruption, creative protest, and rule-breaking are valid and often necessary tactics to effect change.

Amidst this debate and much, much more, a new class of law students is arriving at law schools across the country right now. Thus I was grateful to hear some excellent advice on promoting discussion and civility in legal education, shared at the recent Southeastern Association of Law Schools’ Conference.

Professor Suzanne Rowe of Oregon Law spoke on a panel about building character in the classroom. She briefly stated the character values law school seeks to instill—integrity, trust, respect. And then she focused on specific tools and methods for discourse within the classroom. That may not be all we need right now, but it definitely can help.

What do students need? They need to hear other views, respect other viewpoints, share their convictions with other classmates, and engage across the spectrum of ideas.

But what happens when this “spectrum of ideas” leads to a truly difficult conversation—where someone offers an opinion that fundamentally attacks the integrity, worth, and humanity of another person? Professor Rowe offered a roadmap for responding in these moments:

1.  Recognize what happened.

For example, the professor might describe reactions: “I’m seeing eyebrows raised and people seeming very uncomfortable.”

2.  Share what you feel and believe.

After an objective assessment of what has happened, the professor can share her reaction. For example, “I believe you can say that in a more professional way” or “I feel that the words you’ve used are harmful to members of our community.”

3.  Act

If the professor has prepared for this type of disruption, she might immediately lead students in a discussion of the unprofessional or harmful comment. If not, she might ask the class to take a break and regroup in a few minutes or the next day to engage in that discussion.

Professor Rowe also talked about teaching the value of disengaging. Students can engage more fully when they know they do not have to continue engaging no matter what they may hear. Some students might chose to step out of the classroom during a discussion.

There are no easy answers, but the framework for recognizing, sharing, and acting—plus disengaging at times—may help.

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Listening Skills in the Law School Classroom

This post is for law professors, educators, and anyone interested in listening-related skills training…

Listening contributes to law students’ success in many ways. From participating in class discussion to doing good work in clinics to writing an exam that reflects what was discussed in class, students who listen effectively are in a better position to succeed in law school. They are also in a better position to effectively handle job interviews and real assignments on the job.

Law professors therefore may want to spend some time emphasizing listening skills, either explicitly or implicitly. Here are a few ideas for integrating listening skills into any law school class. Please share feedback and more ideas in the comments.

  1. Model a client interview.

Modeling means showing how to do something the right way. It could also mean showing how to do something with a mix of successful and less successful moments, then discussing the challenges and the process. Either way, students can begin to learn by seeing and hearing models in action.

Modeling a client interview is an excellent way to demonstrate effective listening. “Modeling of listening techniques makes effective practices visible to students,” writes Professor Neil Hamilton writes in his law review article Effectiveness Requires Listening: How to Assess and Improve Listening Skills. (Professor Hamilton’s article was foundational for this blog four years ago and remains so today.)

Modeling an interview during class time would be a significant investment of class time. For teaching in clinics, this investment should pay off directly. Students who have seen and discussed effective listening during an interview are far more likely to do the same in their own work with clients.

In doctrinal classes, a model client interview would be unconventional but could demonstrate good lawyering (including listening) while also covering doctrinal material in a vivid way. One specific idea comes to mind: remedies. Clients may feel they are entitled to some particular measure of compensation that the law actually does not allow. A client interview could bring out the client’s ideas of what he or she deserves, including the lawyer’s careful listening even where the client’s damages theory cannot be supported by law. And then the discussion after the interview could address the substance of remedies as well as the interpersonal challenges of communicating with clients.

  1. Offer listening conferences with assessment and feedback.

The next step after modeling a skill is letting students try it. A “listening conference” is one way to do this, as suggested by Hamilton in his listening article. The listening conference would be a chance for students to role-play a client interview or talk about a doctrinal area of law, and then get feedback on listening.

The conversation partner would be a professor (if time permits) or perhaps a teaching assistant, or a student’s mentor in the legal community. Afterward, the conversation partner would provide feedback and assessment of the student’s listening. The feedback could involve a play-by-play of certain key moments:

  • “I felt like you really heard me when I was talked about xyz because your eye contact and body language were very receptive.”
  • “When I mentioned xyz, it seemed like you started thinking about what you were going to say.”
  • “You used active listening techniques when I described my goals as a client, but you didn’t restate one aspect of my goals, so I wasn’t sure you totally understood that part.”

The assessment could provide more structured feedback on criteria for listening. The criteria’s substance is a topic for future blog posts here. Hamilton has some sample assessment rubrics such as a student’s performance during a client interview.

  1. If you use Power Point, use it to promote listening and learning.

Reading text and listening to words simultaneously just does not work in the brain. The science suggests that far from reinforcing cognitive connections, these redundant inputs impose an “extraneous cognitive load” that interferes with learning.

That is one of many reasons it’s such an awful idea to use text-heavy Power Point slides. Use a blank placeholder slide in every presentation, advises Professor Paul Zwier of Emory Law School, author of Power Point 2003 for Professors. Navigate the Power Point to the blank backdrop when you want students to focus entirely on listening.

To promote effective listening, consider abandoning the bullet points, at least on what you show during a lecture. Intensely visual slides such as what you can make with Haiku Deck or by downloading images from Creative Commons are a great backdrop to help the audience both listen and remember what you say. Seth Godin recommends this best practice in his e-booklet “Really Bad Power Point (and how to avoid it)”:

You can use the screen to talk emotionally to the audience’s right brain (through their eyes), and your words can go right through the audience’s ears to talk to their left brain.

  1. Enforce a classroom 5-second rule.

Another common issue with listening in the classroom is that students may not have enough time to remember—much less process—what was said at key moments. The bounds of working memory are an inherent limitation on effective listening. And in the law school class, the words in a lecture and discussion sometimes come so fast and furious that sometimes students may leave the class with the feeling of “What just happened?”

One protocol that can dramatically improve listening is to impose a “5-second rule”: everyone must wait 5 seconds after a speaker has concluded speaking before raising a hand or otherwise continuing with the conversation. Mark Weisberg and Jean Koh Peters suggest this method in their paper Experiments on Listening.

They report that professors meeting with other professors in small groups found an “astonishing” benefit to this protocol. Participation was both broader—no longer favoring the gunners and turn sharks—and more thoughtful. The same benefit could extend to a law school classroom.

  1. Assign students to listen to a particular case or legal authority in addition to reading it.

Various software, browser apps, and websites can read text out loud. Hearing an entire case read out loud, rather than silently reading it on the page, is a big investment of time. But intensely engaging with one or two cases this way could assist learning, especially for beginners. To use one common error students make when learning the structure of court opinions, where does the review of precedent end and the court’s own decision begin? I believe that listening to the case could help them slow down and recognize the different components of the opinion.

(And please don’t ignore this suggestion because you think “some people aren’t auditory learners.” The idea of a learning style may reflect an individual’s desired learning preference but not necessarily a more effective way for that individual to learn any given material. See here and here.)

The suggestion to listen to a case is better suited for students’ own time outside of class. Class time could also involve short breaks from the lecture in which students read to one another. Bear with me here: Performing the law with a speaker and listener in this way could set up the significance of statutory language or a short segment of a case. The student reading the case out loud would have to decide how to inflect the reading, and the student doing the listening would get the benefit of hearing the words. It may feel forced and awkward to the students and perhaps to the professor as well, but they almost certainly would remember the language better as result of the process.

Better listening leads to better learning as well as better lawyering. These exercises are just a few ideas for focusing on listening in the law school classroom. The articles cited here contain many more ideas, and please also share ideas in the comments to this post.