A Blog Covering D.C. Education [ABCDE]

Closing the Teach For America Blogging Gap
Dec 25 2011

1 Plus and 1 Delta on Legal Education

Believe it or not, I’m still here and I still intend to keep this blog alive. I blame my first semester of law school for my lack of writing. Now that I’m on break, I finally have time to put away the massive casebooks and return to pleasure reading. Boy, did I miss that.

Given that I’ve been away and that my writing muscles are rusty, I thought I’d restart ABCDE with a post on legal education, a timely topic. Indeed, the New York Times chose “Legal Education Reform” as a recent editorial subject, declaring American legal education as “in crisis.” Another critic considered whether law school was a “losing game.” The recession certainly put tremendous pressure on the market for legal services, making law school a less obvious “bargain” than it once was. Perspectives abound.

I avoid the social, political and economic debates here. Instead, I focus on the pedagogy of legal education, spurred, in part, by a recent NYT Room For Debate on the Socratic method. My views are shaped by the experience of my first semester of law school.

(As I’ve done in the past and as I did frequently while teaching, I am providing one plus (“good job”) and one delta (“room for change”) on legal education.)

+

Unlike many of the NYT commentators, I believe that the Socratic method is not only an excellent pedagogical tool in legal education, but an indispensable one. I can’t imagine successful legal teaching without it.

The Socratic method, from the professor’s perspective, is simple yet effective. The professor cold calls students (sometimes at random, sometimes in a more predictable sequence–it all depends on the professor’s style), poses questions, and essentially carries out a conversation consisting of questions and answers. Through this back and forth dialogue with students, the professor teases out the nuances of a case, ultimately uncovering the underlying legal principles. For a professor, it’s a no-frills technique: consider what the students need to know, prepare a series of questions that will lead them there, and know how and when to ask them.

The method benefits students too. Because most professors cold call, and because most students want to avoid the embarrassment of being called on and not knowing what to say, students furiously prepare every reading assignment. The unpredictable nature of the cold call ensures this. As a result, frivolous comments are practically nonexistent and the quality of each class’ conversation is consistently at a high level. Also, the question-and-answer sequence allows students to practice impromptu speaking skills, indispensable for the aspiring litigator. Finally, the method provides a way for professors to reveal their thinking, to, in essence, do a thinkaloud with the aide of her students. The sequential nature of the method–starting with the facts of the case, moving into the legal issue in question, and finally into the holding and the reasoning supporting it–provides a scaffolded way for students to learn the law.

Obvious drawbacks exist. Sometimes, professors mis-gauge the students’ quickness in grasping an idea. If the questions aren’t organized sequentially, a classroom can find itself lost very quickly. It is also not the fastest of methods, especially when a professor calls on a particularly loquacious student. Its “formulaic” nature might lead to the ignoring of some meta issues (e.g. “is this law fair?”).  Finally, although this was much more of a problem back in the “One L” days, the method does leave room for professors to abuse their positions of power and intimidate or embarrass the unsure student.

These problems, however, can be overcome, because they are all professorial and not inherent in the method itself. If a sequence of questions doesn’t work, a professor can revise them such that they are better organized. The never-stops-talking student problem can be solved by the professor posing narrower questions or beginning the question with a limiting clause (e.g. “in one sentence, what would you say is the holding of the case?”). Deliberately leaving room for the meta-questions can prevent the method from deteriorating into a robotic, uninspiring conversation.

Thus, used correctly–and almost every professor should be able to–the Socratic method is a powerful teaching tool. Despite all the palm sweat it drew out of me, and the fewer hours of sleep I could attain because of it, the Socratic method helped me in a big way this first semester. I look forward to it in the new year. Haters should go away.

*****

In a sense, the Room For Debate’s focus on the Socratic method was misguided. There are too many bigger fish that deserve frying. Here is my delta (room for improvement): Legal education needs more guided practice aligned to the skills tested on the final exam. This is a simple suggestion in line with the “best practices” TFA taught me. An effective teacher should assess essential skills using a final exam, and the teacher’s critical role is to guide students through the semester so that they can eventually tackle the exam on their own. Legal education, at least as I’ve seen it, doesn’t do this well enough.

There are really three parts to the delta: (1) the exam, (2) legal skills and (3) guided practice. I address all three, but I take issue primarily with the last.

(1) The Exam

In most law school classes the exam is the be-all and end-all. 100% of a student’s grade turns on her exam performance, which sometimes comes as a 3-hour in-class and other times as an 8-hour take-home. As proof of it importance, administrators impose strict procedures, including the requirement that professors grade them completely blind (students use anonymous ID #s).

Although the high-stakes nature of the law school exam is daunting to some, I ultimately support its use. Its “standardized” nature and its goal of capturing student learning are invaluable. There is room, of course, for professors to provide other methods of assessment. Plus, it would be nice to not have an entire’s worth of work depend on one task. A student who falls very ill during exam week is screwed. Yet, on the whole, this is not the problem…

(2) Legal Skills

The exam, in itself, isn’t a problem because it actually does a good job of assessing students’ facility with essential legal skills. Indeed, perhaps the primary point of an education is to acquire skills. It would be a damn shame if a law school exam tested the “wrong” skills. Thankfully, from my experience, it seems pretty clear that exams test “real” legal skills.

A typical exam question is a complex “fact pattern” (essentially a scenario) that tells a story. The student’s task is to parse these facts, “spot” the legal issues embedded within, and provide an analysis, based in law, of the issues. Oftentimes, the questions are framed as if a client has literally come to you for legal advice. For example, an owner is attempting to sell a house to a prospective buyer. The buyer inspects the house and sees no glaring problems. Just in case, he asks, “is there anything else I should know?” The owner responds, “Nope,” even though he knows that the neighboring plot of land will soon become a sewage treatment plant. The buyer buys the house. The question states that the owner has come to you for legal advice after the buyer, upon learning of the plant, files suit: “Draft a memo to your client.”

In such a situation, a student would be tested on an immense number of skills:

  • First, distinguishing the important from the unimportant. A typical question might be a 2- or 3-page single-spaced narrative. Not everything is critical. Here, it likely doesn’t matter that the owner had recently purchased a house in a neighboring town–such a fact has no bearing on the situation at hand.
  • Second, identifying the issues. In this case, a student would have to realize that the owner may have violated the law of nondisclosure–he may have had an obligation to tell the buyer about the plant.
  • Third, analyzing issues. Here, to analyze whether the owner violated the law, a student would have to assess whether knowledge of the soon-to-be plant was “material” (critically important), whether the buyer entered the agreement at his own risk, and whether information about the plant was so public that it was so public that an owner wouldn’t have had on obligation to mention it.
  • Fourth, writing clearly, concisely and under pressure. Typically there are word and time limits. Professors stress concise, direct and effective writing.
  • Fifth, multitasking. Given that a fact pattern might have a half a dozen other actors, and a dozen other issues, an exam tests the student’s ability to juggle many things at once.

Professors tell me, and I would certainly agree, that these are the essential “think like a lawyer” skills. While there are some glaring omissions (e.g. oral advocacy or teamwork skills), law school exams seem to assess these real legal skills. Thus, the problem in legal education is not about the skills themselves…

(3) Guided Practice

The real problem is that legal education doesn’t provide the right kind of guided practice. I stated above that I have problems with neither the law school exam nor the skills it tests; both are invaluable. But I don’t think law schools are doing enough to get students from point A (knowledge, legally, of nothing) to point B (ability to effectively apply the bevy of legal skills simultaneously, given a complex problem).

At the outset, I concede that there is already a ton of guided practice in legal education. The Socratic method is, in fact, one giant system of guided practice. It is a giant thinkaloud that helps the budding lawyer see how the professor approaches a case. Often, to impress upon students the impact that even the slighest nuance can have on a legal outcome, the professor will pose “hypos” (hypotheticals). So, to be clear, guided practice abounds.

But, the guided practice is rarely of the right kind–the kind akin to an exam, the kind that is aligned to the way lawyers really approach legal issues. In essence, every time we undergo guided practice, we do so in an isolated way. A law school exam question is simultaneously lengthy, complex, confusing, packed with legal issues, and inclusive of excess information. In class, we might deal with a very lengthy case, but only focus on a single legal issue that our professor has already directed us towards. Or, we might deal with a series of legal issues, but the facts of the case might be simple and clear.

In other words, our professors develop in us legal skills in isolation; but our professors rarely ask us to apply them in unison.

*****

So how, then, do students cope? It is not as if we all fail. As I see it, students basically teach themselves how to apply all the skills simultaneously. This comes through brute-force, trial-and-error methods during reading period, when students, huddled together in study groups, tackle professors’ prior exams (of course, at some law schools, professors don’t supply past years’ exams).

The critical flaw, at least from my perspective, is that most of this process is blind. Few professors provide model answers, so students never know if they are “right” (or, at least, arguing using good reasoning). In fact, professors rarely even mention  exams during the semester and then, all of a sudden, during the last class, they mention the exam and its format and how we might actually prepare for it.

I see several explanations for this state of affairs, none of which are sound:

  • Inertia – this is simply how things have always been done. Professors teach using the “traditional” Socratic method and the traditional model of “easy” hypotheticals. The exam, then, is given at the conclusion of the semester. End of story.
  • Legal “hazing” – this inertia is, in some ways, intentional. That is, the legal learning process is meant to be a struggle. All of our professors, after all, went through the identical trials and tribulations of 1L year. They suffered, so we should too (not for malicious reasons, but more for paternalistic, “this is just something that you have to go through to become a lawyer” reasons)
  • Assumptions of intelligence/capability – students are smart or capable enough to tackle legal problems on their own. Having introduced the basic methods, in isolation, it is now the students’ turn to apply the knowledge independently. Professors “trust” the students.

Professors must do more to align what we do in class with what really matters, which is the ability to come up with a well-reasoned solution to a complicated problem. So, from time to time, professors should set aside the casebook and present an exam-like problem, which the class would then, collectively, tackle using the Socratic method–and with our professor as guide. Taking the skills out of isolation would make the legal education that much more enriching.

*****

All of this is constructive criticism. I’ve had a wonderful first semester. I feel as though I’ve learned a tremendous amount, not only about specific areas of substantive law (e.g. contracts, torts, civil procedure), but on general legal thinking, which, thank goodness, I think will help me no matter what career path I choose. Every single professor has done a fantastic job. Heck, even the “struggle” of prepping for exams was useful in some ways. I’m slowly seeing the power that a legal education can have.

But I think that a legal education could be even more powerful. All it takes is a rather simple curricular re-alignment.

 

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3 Responses

  1. Good to see you writing again! My MD at the bank I worked at last summer was a lawyer by training, and he used the Socratic Method with everyone in the group.. It was probably one of the most terrifying experiences of my life, but I learned more than I did in two semesters of finance classes.

    By the way, it’s interesting to note how much of my blogging is subconsciously influenced by yours.. Haha.

  2. We MISS YOU here!! It’s exciting to see you back!

  3. its nice to get you back,thanks a lot.

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Really, "A Blog Covering Dilemmas in Education": A (former) English teacher's reflections…

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High School
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