By: Professor Danielle Tully
Not surprisingly, we are often wrong. Sometimes we make simple, embarrassing errors, like hitting reply-all when we shouldn’t (most of us can tell that story). More often, even for seasoned attorneys, our most troubling errors occur when we are exercising judgment, when we feel like we made the right (or best) call.
Exercising judgment can be fraught with ambiguity especially for law students who feel the profound seduction for certainty, for being right. Yet, developing competence in exercising judgment is an iterative process. By this I mean a lengthy process of mastery that involves working through one challenge after another, reflecting on mistakes, evaluating roadblocks, making new plans, and executing strategies. To get students on board for the ride, students need to embrace errors and learn from them. But how do we teach that? And why is it so hard?
The answers to both questions (of course) are intertwined. It’s hard to teach for two reasons. The first is obvious: many of us fear being wrong. We associate making mistakes with our intellectual ability. If we fail, we are failures. In the first year of law school this feeling can be even more exaggerated. Appearing intelligent, gaining status, and acquiring recognition compel certain behaviors and suppress others. There is also another less obvious hurdle. In her Ted Talk, Kathryn Schulz suggests humans are actually trapped in the feeling of being right and this state of perpetual rightness prevents us from being able to engage with being wrong effectively. She suggests that in our error blindness, we are like Wiley Coyote who chases Road Runner off the cliff. Right up until the moment we look down and realize we are in mid-air, we feel like we are on solid ground. We feel right.
And then we fall.
So as teachers, how do we address these intertwined issues: error terror and error blindness? First, we can challenge our students to doubt objectivity by exposing them to concepts like cognitive biases and asking them to become more aware of how they think. Second, we can talk with our students about the benefits of developing a growth mindset and learning from their mistakes. But simply explaining to a novice how to navigate this terrain isn’t sufficient. As Professor Bill Berman notes in his article, novices need to wipe-out. He implores clinical professors to teach students “failure analysis” – a mindful practice to improve conditions of future decision-making. This includes teaching students to assess and address their mistakes. It also includes teaching them to use the knowledge they gain from the experience to develop a process for preventing similar mistakes in the future.
Failure analysis is not limited to the clinical context. In fact, legal writing and lawyering classes are a natural environment for new law students to develop these skills. Often smaller in size and utilizing frequent formative assessments, legal writing classes provide 1Ls with many opportunities for self-reflection and constructive feedback. But to really reap the benefit of learning from failure, we need to create an environment that not only normalizes but embraces failure as a critical tool of mastery. To borrow an adage from K-12 educators, we should demonstrate to our students that FAIL is a person’s First Attempt In Learning.
Now, imagine standing in front of a group of 1Ls and asking: “Who wants to tell the class about your latest mistake?” You might get an eager hand or two. More likely you will get only blank stares.
Even when we know that everyone makes mistakes, sharing our failures with others can be daunting. As teachers, we can (and should) lower the stakes. In her insightful upcoming article, Kaci Bishop proposes developing a failure framework as a way to do just that. Among the strategies she suggests – telling your own FAIL stories.
I have been telling my FAIL stories since first reading Professor Berman’s article nearly a decade ago. Sometimes I tell a simple slip story – a largely unconscious error that resulted from failing to execute the proper steps to achieve an intended result. For example, last week when providing feedback to a student after a simulated parter briefing in which he was not able to provide me with the full citation to a source when asked, I told a story about a time when I similarly neglected to bring full citations with me to a meeting with my supervisor. I explained how my supervisor wanted to pull up the case in our meeting. Without the full citation (for a case involving fairly generically-named parties) and strapped for time, the supervisor grew frustrated. Here, being prepared meant having the full citation ready. I felt embarrassed and a little stupid. I had worked hard and didn’t have the opportunity to demonstrate it. Thankfully, errors like these are easy to remedy, and I explained to the student how I developed the practice of including full citations in my notes and verifying them before meetings. Sometimes I tell more complex stories about full-blown mistakes in judgment. Stories like these that involve knowledge-based errors can be the hardest to tell because they often occur when we are engaged in the highest levels of thinking and because the wipe-outs are often epic. These stories can also be the most rewarding because by telling them we model self-reflection and intellectual honesty.
The point of telling these stories is not that students will learn from my mistakes. Rather, I share stories so that my students will see that lawyering requires preparation, intellectual risk-taking, creativity, humility, and self-reflection. And that embracing “the other F word” is part of becoming and remaining a competent, confident, and content lawyer.