Category: Professional identity

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 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.)

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.

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

Client relationshipsEmotional intelligencein-house counselMentoringPeople skills

Lawyer as anxiety filter?

In-house lawyer @J_Dot_J has described it most directly:

A law student once shared a related concept to describe his coping mechanism, especially during finals:

“Some people are stress emitters. Some are stress receivers. I’ve learned I’m a stress receiver, and I have to stay away from the emitters.”

The common theme is anxiety. It comes from somewhere, and it goes somewhere. Is there any pattern to the movement of anxiety, and any way to manage it?

One possible answer to this question is “Bowen theory,” which is a theory of family systems that has been extended to the workplace as well. “Are organizations emotional systems also? It appears to be the case. Theoretically, all that is necessary to create an emotional system is spending time together.” This quote is from Roberta Gilbert’s The Eight Concepts of Bowen Theory, which provides the basis for the following summary:

According to Bowen theory, the family—or workplace—unit is the key unit of analysis, rather than the individual. This unit is really a system of interconnected people, and it has two characteristics:

  1. Whatever affects one affects each one in the system. That is, anxiety moves easily from person to person in the group.
  2. [System] members trade “self” into the family relationship in a “fusion” of selves.

You may stop here and say that your team at work does not have these characteristics. If you’re correct, then you don’t have a true workplace unit and Bowen theory isn’t going to be helpful.

But it may be worth asking in a different way: Does anxiety move within your workplace? According to Gilbert, “where the anxiety travels defines the limits of the emotional system.” And does your workplace stake a claim on the workers in the system to “donate” some portion of their selves for work? Does the workplace send a message to “be like us” or “think as we think”? According to Gilbert, an emotional system is made up of these donations of self so that the donates parts become available “more for the family than for then individual.” In this way, members of a unit lose self into the larger unit. More togetherness means more loss of self, and quicker transmission of anxiety.

(When reading about this loss of self and its connection to “groupthink,” I was immediately reminded of compliance challenges and the work of my friend, compliance attorney Scott Killingsworth, on how organizational culture is transmitted and replicated.)

Individuals in a system are healthier and more resilient to the anxiety passed around in the group if they retain some core “differentiated self.”  The concept of the self has two components: a “pseudo self” which is the part that is tossed about by the anxiety of the group and conforms to the needs of the group, and the “basic [or solid] self” which is the part that fights for individuality and stands up for beliefs and convictions. The solid self is the differentiated self. The more the pseudo-self dominates the solid self, the more anxiety that member will feel and will contribute to the system.

Here, if you’re congratulating yourself on being an amazing differentiated person who feels absolutely no influence from your workplace, you may want to double-check yourself for some sort of emotional Dunning-Kruger effect. Gilbert states that if you looked at differentiated selves on a scale of 0 to 100, most of the population hovers around about a 30 and 50+ would be extremely unusual. But this is just an estimate; Gilbert notes that it’s impossible to measure differentiation in one segment of time. The conditions of any given moment are too arbitrary, and you can raise the functioning level of an undifferentiated person by giving them a compliment, and you can lower their functioning by criticizing them.

Within any unit, members of that unit deal with anxiety in four automatic and familiar patterns:

  • Making a triangle among three people, where one is the “problem” (such as a child, or a recalcitrant employee, or an attorney viewed as a roadblock)
  • Creating conflict by refusing to give in on major issues, expending significant energy
  • Seeking distance by slowing down or stopping communication, while still remaining emotionally defined by the problem
  • Overfunctioning / underfunctioning, in which one partner becomes more dominant and the other more passive.

These methods of dealing with anxiety are not a problem unless they become habitual and repetitive “where no one knows how to get out of it.”

There aren’t many references to Bowen theory in traditional legal literature. After reading enough to write this overview, I think it deserves more study, particularly as the legal industry becomes more focused on systems and processes. The law deals with unpredictable, complex problems; designing a system for helping clients with their problems will be much easier if the system of legal professionals is internally efficient and not clogged with stress and disrupted by attrition.

In future posts, I will explore some more ideas from Bowen theory and how they may apply in legal teams. Please comment if this overview prompted thoughts or questions.

GenderLegal communicationPeople skillsProfessional identity

Listening in the Family

Last week’s allegations of sexual harassment against Judge Alex Kozinski brought a response by the judge:

“I treat all of my employees as family and work very closely with most of them.”

Invoking the family is not an entirely warm-and-fuzzy metaphor, as several have pointed out (hat tip to @gokpkd for pointing out this thread):

Family is both a place where people can let their guard down—this could mean everyone in the family, or just some, or just one. It’s also a place where ingrained patterns can replicate themselves over and over—for good, or for bad. The experience of being in a family sets up your framework, or “schemata,” for understanding what happens inside that family, as noted in Debra Worthington and Margaret Fitch-Hauser’s text Listening: Processes, Functions, and Competencies. For children, early family experiences also influence the way they communicate with everyone else in the world.

Families can be classified in two communication orientations, according to family-studies scholarship cited in Worthington and Fitch-Hauser:

  • Conversation orientation, in which all family members converse freely about a wide variety of subjects.
  • Conformity orientation, in which “a family stresses the importance of having homogenous attitudes, values, and beliefs.” Such families “stress[] the importance of hierarchy and clear rules.”

It struck me in reading reports on Judge Kozinski’s chambers that the environment sounds like the worst of all worlds: Judge Kozinski himself certainly appeared to take a broad and flexible orientation toward conversation topics, including but not limited to pornography. But clerks themselves were expected to conform, according to Heidi Bond’s account. She reports being asked to control her own reading preferences as the judge ordered; she reports the judge grabbed her arm and described her as his “slave.”   That’s not healthy. And the extent of just how toxic this environment was, for some clerks, continues to unfold.

Even for those not reporting harassment or heeding internal alarm bells prompting them to avoid the judge, the family metaphor could be troubling. I was reminded of another post on company executives invoking family:

Whenever executives talk about how their company is really like a big ol’ family, beware. They’re usually not referring to how the company is going to protect you no matter what or love you unconditionally. You know, like healthy families would. The motive is rather more likely to be a unidirectional form of sacrifice: Yours.

Months before these allegations against the judge, the “family” metaphor was being taken down by Sam Sanders (@samsanders). His thread (and many responses to it) explored how work as a family may really mean not only exploiting the powerless but also hiding what’s wrong and protecting secrets:

What is a strong and healthy family? Fitch-Hauser and Worthington describe a strong family as follows:

  • Commitment to the family and well-being of its members
  • Positive communication and the ability to engage in constructive conflict management
  • Regular expression and confirmation of affection among family members
  • Enjoyment of quality time together
  • A feeling of spiritual well-being
  • Ability to effectively manage stress and crisis situations.

This list reinforces that work may have some characteristics of a family. One would hope the workplace offers constructive conflict management and the ability to manage crisis situations.

But work is not family. Family is family.

Emotional intelligenceLaw schoolMediationmindfulnessPeople skills

Mindfulness without meditation

They had me at “hello.”

Actually they had me with the title of the handout:

“Mindfulness without Meditation.”

Last week I attended the 2017 meeting of the Southeastern Association of Law Schools, a.k.a. SEALS, in beautiful Boca Raton. The SEALS meeting lasted all week but included a two-day Conference on Mindfulness in Law co-sponsored by SEALS, the AALS Section on Balance, the Mindfulness in Law Society, and the Fredrick P. Lenz Foundation.

Day two featured a session on “Emotional Intelligence and Mindfulness in Law.” That’s where the elusive promise of mindfulness without meditation came in. There were several speakers, and I hope to blog about each of them. This post focuses on remarks by William Blatt of the University of Miami.

Professor Blatt has seven years’ experience teaching a law-school course on emotional intelligence and mindfulness. He acknowledged that mindfulness as a concept can be difficult to effectively communicate. Being mindful helps people to be at peace with themselves, to be more productive, and to have better relationships. But it’s like a neutral gear or a general state. It’s universal, but subtle. Telling someone to gain emotional intelligence by being mindful is like telling a triathlete to get better by exercising.

Professor Blatt uses his mindfulness class to delve into more specifics:

  1. Attention regulation

Students are drawn to techniques that help them concentrate better because they know it will help them academically. To help students see how they must intentionally focus, Professor Blatt draws a parallel to focused intensity in body building. He walks students through a bicep curl exercise. No weights are needed. The first time you just lift your arm. The second time, you imagine a marble in your bicep and you place a finger on your bicep, lifting your arm with focused intensity.

  1. Body awareness

Becoming more aware of your own body can help with mindfulness. The bicep curl exercise above is one way to do it. But Professor Blatt showed some more energetic ways to do this. First, breathe for 30 seconds but forcibly exhale. Let your breath be heard. By breathing out so strongly, you gain more body awareness.

Beyond that, you can get up out of your seat, put your arms over your head, bend your knees, and jump. Like 20 times. Your attention will come back to your body. Yes it looks strange to see a hotel ballroom full of law professors doing this, but it works.

  1. Emotional regulation

One barrier to mindfulness is repetitive thoughts. Professor Blatt shows students how to take a word—maybe “stress”—and repeat it over and over again. The key is to distort it. Repeat it so fast that it sounds like gibberish. Or slow it down and say it in a deep, slow, movie-trailer voice. Or say the word in a mouse voice. These techniques can break the association of such repetitive thoughts.

Professor Blatt also talked about ways to reframe certain feelings. Stress may feel like a threat, but perhaps it can be reframed as an opportunity. This is easy to say and hard to do. Professor Blatt suggested a good technique which is to change a problem into a question beginning “how…” For example “I’m feeling stressed about maintaining this blog” could become “How can I continue to find and post good content on this blog?”

Building on this interrogative technique, Professor Blatt talked about the broader “release technique” which walks through a series of questions about deciding whether to release a current emotional state—or not. The hyper-rational among us who find themselves dealing with an unwanted emotional state may like this pragmatic series of steps.

  1. Perspectives on the self

Does an individual have just one personality—one mood, one approach, one way of being in the world? “I contain multitudes,” Walt Whitman wrote. Professor Blatt discussed a technique for mindfulness in which you try to acknowledge these different “sub-personalities.” The examples he gave were the controller, the seeker, the skeptic, the big mind, and the big heart. Allowing yourself to “hear” the voice of these sub-personalities builds compassion for yourself and is connected to mindfulness more broadly.

I enjoyed Professor Blatt’s remarks about mindfulness because they spanned a wide range of mindfulness techniques from active (jumping up and down) to practical (using a checklist for deciding whether to let something go) to linguistic (articulating a difficult word in an exaggerated way) to conversational (practicing “talking and listening” to your own sub-personalities).

As he said, mindfulness is a general state. But there are many paths to reach—or at least to seek—that state.

Law practiceLegal communicationProfessional developmentProfessional identity

Welcome, #PracticeTuesday Blog

You may know this blog is a huge fan of the #PracticeTuesday hashtag. I covered it here and follow it every Tuesday at 5 p.m. Eastern on Twitter. The conversation ranges from reminders about handling witnesses . . .

. . . to managing constant distractions . . .

. . . to working with opposing counsel productively . . .

. . . to managing mistakes with integrity . . .

. . . to managing your career over time . . .

. . . and much more.

Co-founders Professor Rachel Gurvich of UNC and Sean Marotta of Hogan Lovells have now expanded the discussion to a blog at http://www.practicetuesday.com.

The mission of the Practice Tuesday blog is broad and consistent with that of the hashtag conversations: "sharing advice from law students, attorneys, professors, and judges for law students, attorneys, professors, and judges." The hashtag conversations thus far have been honest and enlightening, and Rachel and Sean promise the Tuesday Twitter conversations will continue. The blog will expand discussions that just can't fit into 140 characters, via weekly postings.

I know PracticeTuesday.com will address listening skills, and in fact is already doing so in one of the first posts, advice for law students during on-campus interviews:

Listen carefully to what you hear from each attorney and actively engage in the conversation on their terms.

Thanks for the shout-out and links to this blog. It seems we will have a lot in common, and I look forward to more conversation on Twitter and on the new blog.

You can follow the Practice Tuesday blog's updates at @PracticeTuesday on Twitter.

AdvocacyClinical legal educationCross-cultural communicationEmotional intelligenceLaw school skills competitions

Stereotype threat

Before a math test, women test-takers reminded of their gender did worse on the test than a control group who took the same test without the reminder. This experiment forms a classic example of stereotype threat, which Professor Susie Salmon from Arizona Law spoke about at the recent Moot Court Advisors’ Conference held by the Legal Writing Institute.

Every identifiable group is in some way vulnerable to stereotype threat, explored for a popular audience in Claude Steele’s Whistling Vivaldi. (For an introductory version, here’s Steele’s 1999 Article in the Atlantic.)

In Whistling Vivaldi, Steele outlines the extra burden caused by stereotype threat:

The problem is that the pressure to disprove a stereotype changes what you are about in a situation. It gives you an additional task. In addition to learning new skills, knowledge, and ways of thinking in a schooling situation, or in addition to trying to perform well in a workplace . . . you are also trying to slay a ghost in the room, the negative stereotype and its allegation about you and your group. You are multitasking, and because the stakes involved are high — survival and success versus failure in an area that is important to you — this multitasking is stressful and distracting.

Professor Salmon explores more open forms of bias as well as stereotype threat in her forthcoming article on gender bias in moot court. Comments to female moot court competitors that their clothes or hair or bodies are distracting or they should make their voices deeper and lower all imply that the ideal of an advocate is male.

The second half of her article delves into stereotype threat, which has a more subtle, more common, and often unintentional effect on students who are members of a group (any group) with associated negative stereotypes. Stereotype threat does not have to be the product of intentional bias. But that doesn’t make it any easier to deal with: “The more that a person cares about performing well at a given task, the more stereotype threat will hinder that performance.”

For a moot court competitor, it’s hard enough to deal with nerves, deliver an organized argument, and answer the moot court judges’ questions. The burden of trying to “slay a ghost in the room” of negative stereotypes makes the competitor’s job that much more difficult.

For professors and supervisors seeking to reduce stereotype threat, there are a number of possible mitigating steps. For one thing, comments about natural ability are actually not constructive.

Legal skills are just that: learnable skills that can be built through work and focus.

Thus, a “growth” rather than “fixed mindset” helps law students in myriad ways including with reduction of stereotype threat.

Another method for reducing stereotype threat is to guide students through a self-affirmation exercise. Before you object, please know: this does not mean the Stuart Smalley-type affirmations about being good enough and smart enough and having people like you. Instead, it means writing about a core value you hold dear that makes you special. This type of writing reinforces the writer’s integrity. It also reduces stereotype threat. The theory, as Salmon outlines in the article, is that it provides the writer with a counter-narrative and interrupts the operation of the threat itself.

My favorite suggestion from Professor Salmon’s talk was the recommendation to give “wise feedback.” Wise feedback means that professors, supervisors, and anyone in a position of authority does two things:

  • Show that they have high standards.
  • Provide personal assurance of their conviction that the students/externs/junior lawyers can meet these standards.

Wise feedback is not just feedback, but mentoring over the long term.

Not only does the wise mentor need to deliver wise feedback consistently, she needs to communicate to each student that she cares about that student’s success and believes in her capacity to achieve.

Professor Salmon acknowledged that stereotype threat is a big topic. The resources below are a sampling of what’s being discussed on stereotype threat in legal education today.

ABA Council on Racial and Ethnic Diversity, Beyond Diversity: How Stereotype Threat and Implicit Bias Contribute to the Status Gap (2012)

Sean Darling-Hammond and Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students, Berkeley La Raza Law Journal (2015)

Russell McClaine, Helping Our Students Reach their Full Potential: The Insidious Consequences of Ignoring Stereotype Threat, Rutgers Race and Law Review (2016)

United States Senior Circuit and Chief Judge Emeritus Judge Harry T. Edwards, Reflections on Racial Stigmas and Stereotyping, Paper Presented at the 2017 African American Alumni Reunion, University of Michigan

Legal communicationLegal writingNarrativeProfessional identity

Lawyers as heroes

Some clients are heroes—or plausibly can be portrayed as heroes in legal briefs. The lawyers remain in the background, telling the story without inserting themselves into it.

Another type of legal writing I study and teach is legal blogging. What I’ve noticed in reading lots and lots of legal blogs is that some lawyers portray themselves as heroes. More than scattering in a few personal pronouns for personal interest, sometimes I see lawyers telling a story with themselves as protagonist, fighting a particular battle or war for years.

This type of blogging narrative tends to crop up in areas where the lawyer represents individuals against the government or large well-organized business sectors. Two areas that come immediately to mind are criminal defense and immigration.

My practice background was in commercial litigation and intellectual property. It was certainly nice to help clients solve problems and navigate disputes. I did help small businesses fend off David-v-Goliath-like situations. I did work with people who cared very much about what happened to them. But at the end of the day, it was business litigation. All of these clients had other things they could do if their very worst outcome happened in whatever lawsuit they faced.

That background made it hard for me to truly get it when lawyers blogged as though they were heroes in an epic struggle. It seemed like there was a lot more lawyer than client in some of these blogs. Why is their own battle and their own story so important that they could explicitly put themselves at the center of it? I suspected a power imbalance, letting the lawyer subordinate the client’s story to the lawyer’s. I suspected ego.

The events of this weekend with the Executive Order on immigration helped me understand.

Lawyers swarmed the airports with their laptops, drafting habeas motions:

Stories of the clients were told, but only those we could actually see:

Many were literally locked in the so-called green room at Customs. Unable to communicate. Prevented from seeing a lawyer. Prevented from knowing that lawyers were outside trying to represent them. Told that the person to talk to about what was happening was President T.

The lawyers doing the work didn’t stop and tweet #habeasselfie or whatever. But someone took their picture. They were portrayed on Twitter and elsewhere as heroes.

And that helped me understand how such a lawyer would, eventually, in reflecting on their work, naturally tell a story in which they are the hero.

The clients are certainly heroic and bear the real burden of all of this. But they’re locked away and unseen, perhaps un-seeable. The lawyer works basically alone. (Maybe lawyers got such a reputation boost from this weekend not only because of the actual exigency and work, but because the photos showed them working so openly in teams bound by ethics and purpose.)

If the lawyer’s work is successful, the client emerges from the maws of the state. At that point, the client resumes their own heroic journey. But the lawyer has a story to tell too.

With this weekend’s airport images of lawyers at their laptops, holding signs offering legal help, and standing up to agents claiming “orders” prevented lawyers from seeing detainees, we got a glimpse of how a lawyer’s day-to-day experience may lead to a heroic narrative—and how that narrative can in fact be justified.

For more on telling the client’s story as a heroic journey, see Ruth Anne Robbins, Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey (Seattle U. L. Rev. 2006).