Category: Legal education

Academic SupportLaw schoolLaw school prepLegal education

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.

AdvocacyLaw school skills competitionsLegal educationLegal skillsMoot Court

Moot court judging—once more unto the breach

Moot court student leaders and faculty advisors are now registering for 2018-2019 competitions. One factor in choosing a competition is the quality of volunteer judges at the competition. As anyone passingly familiar with moot court knows, most of the moot court judging is done not by actual judges but by attorneys volunteering to play the role of judges. Moot court is a massive annual undertaking in legal education, with approximately 75 competitions listed on LSU’s catalog of moot court opportunities nationwide. If each competition uses 20 volunteers (a conservative estimate) and if each attorney judges at only one competition, that’s 1500 attorney volunteers annually. And that figure does not include the many internal competitions at various law schools also utilizing attorney volunteers. It also does not include the many volunteers at mock trial competitions, ADR, and other litigation-skills competitions. This post is relevant to those as well—it’s relevant to any skills competition that uses attorney volunteers to play a role during the competition, score the competition, and give feedback to law students.

These attorneys are crucial to making moot court broadly available so students can demonstrate and use their advocacy skills in a (simulated) high-stakes environment. These attorneys also have tremendous influence over the quality of competitors’ experience. The volunteer attorney judges must ask questions, evaluate answers and transitions, and give scores that determine which teams progress to the next rounds. The volunteer attorney judges also are often given the opportunity to address the competitors and share some brief commentary and advice. Moot court is “moot,” but advocating for a client before strangers, accepting feedback with aplomb, and firing up to “go again” in another competition round on short notice does help prepare students for high-stakes experiences in practice.

On all of the volunteer attorney judges’ objectives—educationally valuable questions, fair scoring, and wise feedback—their performance can vary widely. When they ask judge-like questions, score fairly, and give useful, constructive commentary, moot court succeeds. But when they badger or dominate a round, give superficial, inconsistent, or unfair scores, or share unhelpful or unnecessarily damaging comments to competitors, moot court fails.

After hearing positive and negative stories along these lines shared by other faculty advisors, I invited contributions about moot court judging. The questions contributors could choose from included the following ideas:

  • What are some of the best experiences you’ve had with attorney judges at moot court competitions?
  • What can attorneys do to prepare for judging to make it an excellent educational experience for students and helps the attorneys share uniquely valuable advice and feedback with students?
  • What are some of the worst experiences you’ve had with attorney judges at moot court competitions?
  • How do you distinguish between critical feedback and scores that are poor but fair, and inappropriate feedback and unfair scores?
  • What can competitions do to prepare their attorney judges and minimize bad experiences for students?
  • Have you ever pulled your law school out of a competition because of inappropriate judging or other problems with a competition?
  • How do you prepare students to handle any type of attorney feedback they may receive?
  • Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?
  • When moot court is done right, what does it offer students and attorney judges who are willing to volunteer?

In response to the call, this compilation features three contributions: Patrick Long of Buffalo, Susie Salmon of Arizona, and Barbara Gotthelf of Rutgers. Thanks to each contributor.

PLONGBy Patrick Long 

Legal Analysis, Writing and Research Program Coordinator and Lecturer, and Director of Moot Courts, University at Buffalo School of Law

Q: What makes a good—and a bad—volunteer moot court judge?

We tend not to hear about the good experiences with judging. Few people talk to us as directors when arguments go well, judges are engaged, and there’s enough coffee. So as directors, no news is really good news. As a result, my most vivid experiences are all bad ones. I know: we need to be thankful for our volunteer judges. CLE is not much payment for the work a good judge does, and we simply could not do moot courts without their help. Nonetheless, there can be some real stinkers. The bad judges fall into two broad categories: lousy humans and lousy teachers.

In the lousy human camp are these judges:

  1. The judge who told a student with mild cerebral palsy and a slight stutter that “because of your speech impediment, litigation is probably not a great fit for you.”
  2. The judge who complimented an Asian-American student on how well she knew English.
  3. The judge who reads the bench brief for the first time when he arrives at the competition.
  4. Any judge who says “I know the dean …”

In the lousy teacher camp are those lawyers who have forgotten what it means to be a student, or to be responsible to educate students. They expect 2L’s and 3L’s to match their own (self-inflated) knowledge of law and procedure, and they expect problems that present near-actual legal issues and facts. These judges are incapable of inspiring students about the profession, or teaching them what they need to know. They also refuse to understand that those who write the problems need to find two issues, on interesting legal topics, that are not factually on point exactly with cases pending (because students will just download the briefs from Westlaw):

  1. The judge who disagreed with a student’s version of the facts because she had not read the record or the bench brief. Then castigated the student for the ridiculous problem “that could never happen in real life” after the student showed her the fact pattern. At lunch, she spent 20 minutes complaining to me about the idiot who wrote the problem, not aware that it was me. That evening, that’s team coach told me in all the years he had been coaching moot courts, he had never seen so lousy a judge, and he was convinced she intentionally tanked his team’s score because of her own failure to read the record.
  2. The judge who tells war stories about his own fabled career for 25 minutes in the feedback portion, ruining the entire day’s schedule, and ignoring the students entirely.

There are those rare angels, however, who really make me proud to be a lawyer:

  1. The judge who actually reads all the cases cited in the bench brief.
  2. The judge who tells you she enjoyed the problem.
  3. The judge who says for an extra round because you are thin on volunteers.
  4. The (actual sitting) judge who told the competitor who crashed and burned how poorly she did in her first argument in court, and how she thought about quitting the DA’s office.
  5. Your former student who comes back to judge, because she knows how much she learned from the experience, and because she knows it’s part of her duty as an attorney to give back to the profession.

These angels make it worthwhile, but they seem more and more rare these days.

 

salmon_susanBy Susie Salmon

Director of Legal Writing and Clinical Professor of Law, The University of Arizona James E. Rogers College of Law

Q: Some attorneys argue that harsh words and even harassment are part of legal culture, so moot court can help students by preparing them for that too. What are your thoughts on that stance?

I think that attitude is at best misguided and at worst disingenuous. How do we create a culture of civility and respect in the legal profession if members of the profession model this type of incivility and disrespect (and frequently seem to be having so much fun doing it) at moot-court competitions? And, honestly, I’d give that justification more credence if the attorneys who misbehaved while in role then told the students in feedback that their misbehavior—while not unheard of in the profession—should nonetheless be unacceptable. I strongly favor moot-court judges who hold advocates to account, force advocates to use law and fact to support their arguments, chastise advocates for making false statements of misrepresentations, and prevent advocates from evading difficult questions.

But I do not support moot-court judges modeling unprofessional, uncivil, or disrespectful behavior just because some real-world judges and attorneys will behave poorly.

Should we sexually harass students during moot court just because Kozinski existed? Should we make bigoted statements because students might be subjected to such behavior in the real world? No. Of course not.

We prepare students for those unpleasant realities—without perpetuating them—by discussing real-world examples and how to handle them, not by modeling that poor behavior ourselves.

Q:  What can attorneys do to prepare for judging to make it an excellent educational experience for students and help the attorneys share uniquely valuable advice and feedback with students?

Nothing devalues the moot-court experience for the students like unprepared or underprepared attorney judges. Unprepared judges cannot accurately assess the substance of a student’s argument and thus will reward superficial polish and bluster over truly proficient persuasion. Read the bench memo thoroughly and make sure you understand the legal principles and crucial facts. If you have time, read some of the key cases. Discuss the law and facts with your fellow judges, if possible, and ask clarifying questions as necessary. If the problem presents an area of law with which you are entirely unfamiliar, consider browsing a treatise or two. Try as much as possible to prepare as you would if you actually had to decide the issue.

Q: What can competitions do to prepare their attorney judges and minimize bad experiences for students?

Competitions can help by making it as easy as possible for judges to be well prepared for argument. Look: I know it’s often hard to recruit judges, and there is only so much a competition can do to control what busy volunteers do to prepare.

But competitions can make it easier, more fun, and more convenient for judges to be prepared. Many competitions—including our internal competitions at Arizona Law—provide not only thorough, well-organized written bench memos and judging guidelines but also instructional videos that include an overview of the key legal and factual issues and some tips on judging and scoring.

With the proliferation of online education, most educational institutions have access to the technology that will help you make the material accessible to judges in a mode and at a time that’s most convenient for them. Explore whether the jurisdiction allows you to offer CLE credit to attorneys who review the prep materials (maybe even create a quiz to make sure people have digested the key information); attorneys always need CLE credit!

When you create the problem, resist making the legal issues so complex and convoluted that lawyers of ordinary intelligence will struggle to get up to speed; the students will work hard to understand those issues and develop sophisticated arguments, and few things are quite so demoralizing to a moot-court advocate as having an ill-prepared judge favor your opponent’s slick but flawed retort over your nuanced, thoughtful, accurate argument.

And I love it when competitions give coaches comment cards to make it easier to share feedback on the competition, including judging issues. I provide many more suggestions in my article, Reconstructing the Voice of Authority, which came out in Akron Law Review in fall of 2018, but those would be my top tips.

Gotthelf-Barbara-photoBy Barbara Gotthelf

Professor of Professional Practice of Law and Director of Externship Programs, Rutgers Law 

Q:  How do you prepare students for comments from moot court judges that focus on superficial issues?

I’ve stopped calling our program at Rutgers “Hunter Moot Court.” Instead, I call it “Hunter Appellate Advocacy” because I want it to be seen—by students, faculty, and guest judges — as an educationally focused simulation course rather than a public speaking contest.

Hunter Moot Court, named for the late Third Circuit Judge James Hunter III, is a year-long, five credit course in which students brief the case in the fall and argue it in the spring—more or less the way it happens in real life, which is the point. The course is designed to approximate actual practice as much as possible. That goal—making it as real as possible—governs how we approach the judging of the arguments.

This is what I tell my students. From their perspective as advocates, the purpose of oral argument is to persuade the court by narrowing the issues; answering the court’s questions, rebutting arguments; and explaining in simple, concrete terms, how and why they should win. From the court’s perspective, oral argument is a chance to clarify, to probe, to challenge, and to resolve any issues that stand in the way of reaching a decision.

I also tell my students this: None of this has much to do with their oratory prowess.

As Justice White once commented, judges view lawyers as resources, not as orators. As long as the lawyer can be heard and understood, I honestly don’t believe the court cares one bit whether the lawyer appears nervous or pauses to gather her thoughts.

Judges do care, and care a lot, if the lawyer is prepared; if she is respectful; and, most of all, if she answers the court’s questions, fully and directly. I tell my guest judges this as well, and I ask them to evaluate the arguments from the perspective of an actual judge hearing a real argument, focusing on what truly matters to someone who must render a decision in a real case involving real litigants.

And then I warn my students that no matter how well we try to prepare the lawyers who will judge their arguments, some of them are still likely to give feedback on things like inflection, use of verbal fillers, dramatic flair, and rhetorical wizardry.  Worse yet, I tell them that at least one student—probably a woman—will be told to smile more, and another—probably a man—will be told to “come out swinging” on rebuttal. This is the cyclical curse of moot court. As law students, these are the criteria many of us were judged by, especially those of us who went to law school before much thought was given to what “practice ready” means.

The lawyer/judges don’t always get this. But the students do. By the time we get to the argument phase in March, they have lived and breathed the case for six months, and frankly they don’t want to be told to smile more. Because we’ve discussed this, they are able to filter out the superficial comments and focus on the substantive feedback.  This is one of many reasons I always invite Hunter alums to judge the arguments.

__

Thanks again to the guest contributors above. For more information on moot court judging, see Barbara Kritchevsky’s law-review article Judging: The Missing Piece of the Moot Court Puzzle, reprinted in the Legal Writing Institute’s Monograph Series, Volume Six on Moot Court and Oral Advocacy. (Full disclosure: I was editor-in-chief of that volume.)

And good luck to every student competing in moot court and other skills competitions this year. You are making yourselves into stronger and more skillful future lawyers by all your work!

 

Law schoolLaw school prepLegal educationPrelaw

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.

Clinical legal educationFact investigationLaw schoolLegal education

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.

 

 

 

 

Client developmentClient relationshipsEmotional intelligenceInnovationLaw firm management

Unicorn lawyers

What is a “unicorn skill”? It’s a skill that reasonably performing professionals in the field do not have, which is why they are just…reasonable. They can still do their job but are not “A” players. A unicorn skill is thus rarely found, and those who have it stand out as…unicorns.

I learned about the term “unicorn skill” from this article (quoting John Maeda’s Design in Tech report) claiming that for software designers, the unicorn skill is not coding (as traditionally thought) but good writing. Coders who are also great writers are unicorns:

A core skill of the interaction designer is imagining users (characters), motivations, actions, reactions, obstacles, successes, and a complete set of ‘what if’ scenarios. … These are the skills of a writer — all kinds of writers, but particularly fiction, screenwriting, and technical writing.

(This segment of the article is quoted from blogger Susan Stuart.)

The unicorn idea connects to a larger meme within the design community about unicorn designers, who—according to http://www.uxunicorn.com —can be described as follows:

Mythical user experience designer with an advanced and adaptive skill range. Outstanding skills in graphic design, rapid prototyping, front end development, user testing, technical specifications, marketing and branding. It does not have an opinion, it has a process, and will harmonize with any environment.

Unicorn designers are basically “supernatural beings” that may or may not exist, but that hiring managers want. They combine the best of technical skills with the best of soft skills:

It’s important to be able to receive and give feedback and have the necessary soft skills to work efficiently with others. Fortunately, with the understanding and expertise of different skill sets, unicorns should be able to develop deep empathy for the people they are working with.

Obviously there is some skepticism here about whether such a designer exists, or could exist.

Unicorn lawyers?

If that’s a unicorn designer, then what’s a unicorn lawyer? It’s not that far off from the combination of advanced technical plus soft skills described above for designers and coders. Here’s a draft description, inspired by the above and tailored to the legal profession:

Mythical recent law grad with an advanced and adaptive legal skill set. Outstanding skills in client interviewing, case analysis, legal research and analysis, mediation, litigation, transaction, regulatory compliance, social justice, efficiency, people skills, client development, and pro bono. They do not have an opinion, they have a complete skill set, and will enhance the justice production and economic advantage of any firm or agency. They are also qualified to be a solo unicorn needing no further mentoring.

Skepticism about unicorns in design work reminded me of the skepticism within legal education: can a law school can really be expected to produce a practice-ready graduate immediately adaptable to literally any legal environment? Those who aspire to produce or to be unicorns embrace a perhaps radical faith in and dedication to their own professional development.

Assuming for the moment that producing / being a unicorn lawyer is a worthy quest, can we identify one single unicorn skill—a skill that is under-appreciated, not commonly found, and highly correlated with outstanding performance in the field?

After reading the claim that writing is the unicorn skill for designers, I posited on Twitter that legal writing might be the unicorn skill for lawyers:

That idea was instantaneously shot down, with multiple sources confirming that legal writing is necessary but not sufficient—at least not in law firms that need client business. Any skill that is expected as a baseline cannot be a unicorn skill. The skill identified as more unusual and more likely to be rewarded was rainmaking. And rainmaking can, of course, be defined in various degrees of formality:

Listening as the unicorn skill for lawyers?

Listening is not unrelated to client development and even “a**kissing.” So can we say effective listening might be a unicorn skill because it is not commonly practiced at the level of excellence and is highly correlated with overall excellence?

First, it’s important to acknowledge that in almost any lawyering that involves interpersonal interactions, listening should be practiced to at least an average level of competence. Lawyers have to listen to their clients to take the facts, and listen to their supervisors to take assignments, and listen to witnesses to take depositions and conduct witness examinations at trial.

But is listening commonly practiced at the level of excellence? That means picking up the wealth of verbal and nonverbal cues that intense listening can reveal. It means making people truly feel heard. It means hearing and processing what is not being said. It means recognizing the moment of opportunity to interrupt and show engagement, versus the moment to sit back in silence and let the speaker continue unabated. The judgment and skilled intuition needed for this type of listening is why it goes into good lawyering in a technical sense and good rainmaking in the social sense of being liked and trusted. Finding all these skills in one person (plus necessary but not sufficient skills like legal writing) makes for a great lawyer.

And—according to the hypothesis of listening as unicorn skill—you don’t see top lawyers who are not also really strong at listening. You might call it charisma, but listening is part of what these extra-effective professionals do so well, and that others don’t. They take in a lot of information efficiently in their conversations and remember it. When they repeat questions, it’s not because they missed something, but to see if the speaker answers differently or to refocus on a crucial area. They may follow up in writing with precision to pin down the recipients and preserve their “record” for later.

Even in settings not traditionally understood as emotionally charged, they help others feel heard, efficiently, because they subtly manage the conversation. That’s part of what makes for great rainmaking. They may gravitate toward and be promoted in jobs that reward personal networks and interpersonal skills, e.g. negotiation and business development. After interacting with a skilled listener, people may not identify listening as the exact reason they are impressed, but they walk away with a sense of confidence and trust, and a positive impression. Those without the same skills in listening are fine, average, reasonable, even very good—but not unicorns.

Although I’ve made the case for listening as a unicorn skill, I am genuinely interested in others’ opinions of what the unicorn skill for lawyers may be.

For example, Lucy Endel Bassli has gone in a completely different direction, arguing that a unicorn lawyer is someone who “likes process and seeks data.”

When we look across the profession, what skill is under-appreciated, not commonly performed at a high level, and signifying truly excellent performance in the field? Have you ever interacted with someone you consider to be a “unicorn lawyer”? If so, what led you to that conclusion?

Law schoolLegal communicationLegal educationLegal skillsLegal writing

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.

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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

AdvocacyLaw schoolLaw school skills competitionsLegal educationLegal skills

“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?

Law schoolLegal communicationLegal education

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.

 

Client developmentClient relationshipsin-house counselInnovationInterviews

Review: Katrina Lee’s The Legal Career

511sXW1U++L._SX359_BO1,204,203,200_Katrina Lee’s new book on the business of law, The Legal Career: Knowing the Business, Thriving in Practice (West 2017), starts by exploring the design of a law-firm office. Lee points out that the law office can be seen as a microcosm of the legal industry: evolution, yes, but also persistent adherence to the old ways. Newer office designs place greater value on “flexibility, openness, and collaboration.” There is less of a differential between the size of junior associates’ office square footage and that of partners. Law libraries may look more like “a comfortable coffee shop,” or even (heaven forbid) be known as a “lounge-brary.” Less emphasis on space for physical books opens up more space for all employees. Despite these changes, some firms polish the walnut-grained panels the way things always have been.

The Legal Career goes on to chronicle law-firm billing conventions and salary structures, as well as the “precipitous” drop in solo practitioners’ salaries over the past 30 years, and a growing role for legal professionals who are not licensed attorneys. Lee cites research from Heidi Gardiner of Harvard that effective collaboration among law-firm offices and practices groups leads to increased revenue.

Lee now teaches at The Ohio State University Moritz College of Law; before that, she practiced law for 12 years including six as an associate and six as an equity partner. Her book brings together these two careers: it’s textbook for law-school courses in the business of law, with an admittedly heavy emphasis on civil practice. As Lee writes in her introduction, it is “law firm-centric.” It does include in-depth interviews with in-house counsel giving a helpful client’s perspective from within “the corporate law department.” Lee interviewed in-house counsel at a variety of companies ranging from Google to an Ohio-headquartered insurance company.

That is not to say The Legal Career is just a practical how-to manual for understanding the job market as it is and getting a job. That approach would simply replicate the current flaws and weaknesses of the legal industry; Lee’s book is more ambitious. For example, her interview with Dr. Silvia Hodges Silverstein delves into the Gender Billing study. Although female lawyers don’t work less than men and are not less productive, Dr. Silverstein’s study showed “clear” and “depressing” patterns: “[W]omen are assigned less strategic tasks, given more administrative work,” and “Male lawyers’ invoices were also less discounted than female lawyers’.”

The Legal Career explores other business problems and weaknesses such inefficiency and resistance to technological advances. Lee quotes D. Casey Flaherty: a client unhappy with a law firm’s advocacy or counsel should simply “get new lawyers.” But for complaints about the “content” and “production” of information as opposed to the underlying advocacy or counsel, a client may benefit from talking with their lawyer or law firm about better process and efficiency. In this regard, clients can drive change. Flaherty envisions the law firm as “long-term legal suppliers” and recommends more conversations between clients and lawyers to foster more efficient services for clients and more accurate, less discounted realization rates for firms.

Working efficiently raises the issue of incorporating project-management experts into the law-firm delivery model, and much broader involvement by professionals who are not licensed attorneys. Consistent with opinions of many in the law-firm innovation discussion, Lee questions the term “non-lawyer” as potentially “unproductive and unfriendly.” But what term should be used instead? And should lawyering be regulated differently to allow more “legal technicians” and the like? In this way, The Legal Career also takes on challenges with access to justice.

Near the end of The Legal Career, Lee explores the need for innovative legal education. Here again, the range of opinions offered is a strength of the book. One quote from William D. Henderson jumped out at me:

There’s a real opportunity here. Lawyers are always happy when they are solving their clients’ problems. It’s a great day when you solve your client’s problem. In this day and age, we’re going to solve a lot more problems better; that will bring a lot of psychic happiness to lawyering. The economic model for this is unclear, but it’ll sort itself out.

Lee doesn’t—and can’t—provide easy answers to such questions. She encourages creative discussion about the big issues facing lawyers, such as in a classroom setting. But a class on the business of law is not necessary to learn from this book. Anyone who reads The Legal Career will be challenged to reflect on their individual careers, the meaning and measurement of law-firm success, innovation in legal education and the legal industry, the role of lawyers in society, and the future of the profession.

 

 

 

 

 

 

 

 

 

 

Cross-cultural communicationDiversityEmotional intelligenceLaw schoolLegal education

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.