A Holiday Interlude
Wishing you peace, love, and joy this holiday season!
See you in the new year!
Drafting MBE Items: A Truly Collaborative Process
By: Professor Tim Davis (Wake Forest)
In 2003, I was invited to attend a meeting of NCBE’s Multistate Bar Examination (MBE) Contracts Drafting Committee, one of the seven drafting committees for the seven subjects covered on the MBE. As I observed the deliberations, the collaborative nature of the process in which committee members were engaged became readily apparent. Over time, I would come to learn more about this collaborative process that culminates in professionally crafted questions that appear on the MBE—and experience how that process has facilitated my developing expertise, affording me the opportunity to be of greater service to law students and professors. (more…)
Becoming a Lawyer Should Not be a Product of “Instagramification”
By: Prof. Gregory Bordelon (U-Baltimore)
In light of the pervasive and growing influence of social media platforms like Instagram, should legal educators and members of the profession be concerned with how the process of becoming a lawyer is being portrayed in modern-day social media?
The concern is not any single person’s decision to become an attorney; that is a noble calling. The concern is the impact of social media has on that decision. Do social media followers understand this commitment? Is it incumbent on the influencer to warn of this? The life decisions that drive people to decide to become lawyers are varied and often powerful. What should not drive people to become lawyers is simply what they see posted on social media. I don’t say this to pass judgment on an individual’s decision but for reasons of informed perceptions about the rigor of law school, the bar exam and the practice itself – rigors that, in my opinion, could never be fully realized in a tweet or comparable social media communiqué.
Can law schools “unteach” a snapchat on how to write a law school essay? Can a contracts professor challenge a student who believes that offer and acceptance in a UCC Art. 2 sale is as easy as two tweets? The desire to “learn” anything from social media is antithetical to the goal of legal education – to present the numerous ways that a particular factual problem can be resolved based on the equally numerous ways that laws interact with one another.
While social media meets many contemporary students where they are, hashtagging IRAC exercises or pictures of thick casebooks doesn’t fully bring to bear the scope and import of a rigorous legal education. It may be bragging rights to show what one is learning – that’s fine (to an extent), but it shouldn’t be taken as an example that legal education is light, airy and easy, subject to intermittent focus and random engagement. The study of law is to be like the practice – careful, thorough, dutiful and professional. It is a good thing, yes, if likes, shares and streaks on social media platforms are the things that cue people in to currency in legal education, but it’s another thing to have those interests be fully formed and owned in a responsible, realized process of legal education leading up to a bar exam.
I’m not a Luddite when it comes to legal pedagogy, not by far. I am fortunate to work at a law school that understands and in fact celebrates the changing landscape of the practice of law. However, the bar exam is ensconced in administrative status quo – calling examinees to a defined place, to be assessed by a very defined instrument, with component parts carefully pieced together to measure the minimum competencies required to practice law – critical thinking, analytical ability, succinct and direct writing with the proper persuasive tone to the proper audience.
I’ve been fortunate to work in many spaces along the legal education continuum, in the undergraduate arena, in the law school time frame and at the immediate bar exam point. One consistent thing I’ve noticed from students who are committed to the process is that they understand the gravity of the profession and the critical role that lawyers play in our society. It is the slow, deliberate researching of a case through discovery or the laborious piecing together of an appellate brief that mark the profession, not the immediacy of a snap or post that shows a highlighted casebook.
There can be many proposed solutions to this concern. It starts, first, with lawyers realizing a duty to mentor those interested in becoming attorneys. Local and state bar associations are the best avenue for initiatives of specific mentoring. It is “general mentoring” that should be explored – the idea of having lawyers, judges and the academy expose the public to what lawyers do and to the rigor and nuance of how to carefully develop the skills of legal analysis and reasoning. This could be done by “taking the fight” to the same arena – through social media – but such efforts would have to be carefully crafted to justify the reason – with sufficient follow-up, links, deeper dives and videos woven together to show the web of interconnectedness that is gestalt of lawyering. This could provide aspiring lawyers with real-world opportunities to see the dynamic practice of law. Social media is but the speaker that amplifies the message; the message should be that becoming a lawyer is not something determinable by a “like” or “tweet.”
 In early 2019, the Association of American Law Schools (AALS) released a comprehensive study of the reasons undergraduate students decide to go to law school. 44% of all respondents see the law degree as a pathway to public service, government or politics. 32% see a legal education as a way to advocate for social change. Source: Association of American Law Schools and GALLUP, “Highlights from Before the JD: Undergraduate Views on Law School.” https://www.aals.org/wp-content/uploads/2018/09/BJDReportsHghlights.pdf. Date visited: 19 August 2019.
All Treats, No Tricks: Law Teaching Ideas for this Halloween
By: Prof. Abigail Perdue
I LOVE Halloween. Every evening in October, I watch and rewatch Halloween cult classics like Ghostbusters and Hotel Transylvania. I create an eerie graveyard in my front lawn that features a skeleton bursting through the ground and shattering his tombstone into pieces. Pumpkins and gourds of various shapes and sizes line the steps to my home where a giant, black spider waits ready to pounce on unsuspecting trick-or-treaters. So, of course, I also relish any opportunity to “spookify” my law school classes. Here are three fun ways: (more…)
Conferencing Made Easy
By: Professor Abigail Perdue (Wake Forest)
It’s that season again – that crazy-making time of year when Legal Writing professors across the country gear up to survive a marathon of student conferences. This year, I’ll be enduring a whirlwind tour of 22 forty-minute conferences in five days (in other words, a whopping 880 minutes of contact hours) all while providing feedback on over 374 pages of student work product! (And that’s just for my 2Ls . . .) Here are a few tips to make conferences run more smoothly at any time of year:
- Pace yourself: Caffeination will only get you so far. It’s important to spread out your conferences through the conference period so that each student gets meaningful feedback. While you might be tempted to power through twelve conferences on a Friday because that is the one day you don’t teach class and will give students more time to work on their drafts, it is unlikely that you will have the same energy and enthusiasm in conference twelve as you possessed during your first, fresh-eyed conference of the day. In addition, if you provide advance feedback, you will have to read all twelve memos or briefs in the same period, seriously limiting the amount of time you can devote to each one. This strategy probably isn’t the best for you or your students, so know your limits and pace yourself. If you plan to provide advance feedback, then require students to submit their work to you in a reasonable period of time, such as 48 hours before the conference. This will vary depending on the length and complexity of the exercise and the number of conferences you will have each day.
- Respect students’ time: Forty minutes or even an hour passes in a flash, but out of fairness to other students and respect for their time, it’s important to stay on track. To avoid appearing distracted by glancing at the clock during a conference, I set my phone to Do Not Disturb and then set a timer when the conference begins. I let students know what I’m doing and why. Silence your phone. Put away your laptop. Be mindful, present, and engaged. The timer will tell you and your student when time is up.
- Plan ahead: Aim to provide students with your conference dates and times at least two weeks before any draft will be due so that they can plan their drafting schedules accordingly. Give them a reasonable period of time by which to sign up for a conference and a clear cut-off date so that you can finalize your conference schedule reasonably in advance. This will ensure better quality drafts and avoid eleventh hour requests for conference scheduling changes.
- Set clear expectations: State your conferencing policies clearly in your Syllabus and email them out as a reminder to students a few days before each conference week. For example, my Syllabus indicates where conferences will occur and how students should ideally prepare for a productive conference. Specifically, I encourage them to review any written feedback in advance of our meeting and list their questions from most to least important. The Policy also advises students to bring two hard copies of the draft to our meeting as well as any other materials the student would like to review, such as cases, the Record, etc. The Syllabus should also explain under what circumstances you will reschedule conferences, when drafts are due if advance feedback is requested, penalties for missing a draft submission deadline, etc. Transparency, clarity, and notice are critical.
- Explain the why: Take the time to explain the reasoning behind your conferencing policy. For example, I explain to students that I require them to bring everything they wish to discuss to the conference so that we need not waste time locating and printing materials to which we must necessarily refer. In turn, this enables us to devote 100% of our time together to answering their questions and discussing my feedback. In other words, their preparedness promotes our productivity, which ultimately benefits them. It also cultivates good habits that their future supervisors and clients will likely expect and appreciate.
- Provide incentives: Unfortunately, humans often need tangible incentives to promote best practices. So a few years ago, I added an APP grade to my writing courses to reward attendance, participation, and professionalism. One of the things that the professionalism grade takes into account is conference conduct. Not only is the APP grade explained in the Syllabus, but I also discuss it in class before the first set of conferences. I emphasize that unprofessional conference conduct, such as arriving late, being unprepared, or being disrespectful, will adversely impact the professionalism grade. I further advise students that they are expected to behave just as professionally with their TAs as with me and that their TAs will email me professionalism notes after each set of student conferences to report any egregiously unprofessional behavior that could warrant an APP ding.
- Be intentional: Determine your pedagogical goals at the outset of an exercise and provide a conferencing experience that will best satisfy those goals. Perhaps a goal of your first conference is to build relationships, so you may allot more time for small talk at the beginning or end. Perhaps you want students to understand what your comments mean, so you might provide live feedback that will enable you to explain the basis for the comment with the student in person. Later in the semester, you may wish to foster more independence and less oversight in drafting, so you may wish to provide a shorter conference time or fewer comments. In short, be intentional. Not all exercises aim to achieve the same pedagogical goals. Nor do all conferences.
- Offer, don’t impose: My first student conference is mandatory because it’s my chance to get to know students better outside the classroom and to explain the basis for my commenting style. Thereafter, conferencing with me is optional. This is a dramatic change from my first few years of teaching when I firmly believed that conferencing was the most important part of teaching whether students realized that or not. As a result, I made every conference for every exercise mandatory. What were the end results of this arguably draconian measure? Unprepared students. Incomplete drafts. Heightened resistance to feedback. Embittered feelings of disempowerment. Wasted time and energy. Mental and physical exhaustion on my part and theirs. Over time, I realized that law students need and appreciate choice. Now I require one conference both to satisfy departmental policy and to hopefully demonstrate the tremendous benefits of conferencing. After that, it’s up to the students to avail themselves of these opportunities or not. What result? Stronger relationships. More preparedness. Happier students. More productive conferences. Less resistance to feedback. Better outcomes. Time well spent.
How do you promote productive conferences? Share your good ideas at [email protected], and we might just post them.
Better Technology, Better Briefs
By: Professor Joe Regalia (UNLV)
“We’re not like computers,” explains psychologist Tom Stafford, who studies typos at the University of Sheffield. Our brains are not wired to pick up every detail, at least not without enormous work. Editing right takes forever. Some say that it should take as long to edit as it does to draft. A busy lawyer (or law student) may not have time for that.
We have two problems: (1) We can’t catch everything when editing our own stuff, and (2) even if we could, we don’t have the time.
These are problems for all lawyers. And so as a law professor, I spend a lot of time trying to help my students work through the same problems. One solution that I have turned to is technology—and most recently, Ross Guberman’s BriefCatch.
BriefCatch is a Word plugin that offers detailed editing feedback on legal writing. BriefCatch is something different from programs like Grammarly. Because BriefCatch is made for legal writing. It helps you spot more than grammar. Instead, it provides live editing suggestions on your legal prose, ranging from citation advice to wordsmithing recommendations and persuasive writing tips.
For legal writing teachers, BriefCatch could be a game-changer. We all lament how much law students and young lawyers struggle with basic writing style. Now, for the first time, we have a tool that can help students train legal writing techniques using their own writing.
That all sounds good, but I wanted to put it to the test. So several law professors and I created a working group to incorporate BriefCatch into first-year legal writing curriculum. Our goal was to use the tool to help students train many of the basic writing-style techniques that we don’t have time to drill in class.
Each week, along with their substantive writing work, students were asked to run BriefCatch on their assignment and to pay attention to a single type of editing recommendation. They recorded on a chart how many times the tool recommended that type of edit and how often the student agreed with it. The next week, students did the same thing but with a new type of edit.
Feedback from both the professors and students has been overwhelmingly positive. Students love that they can use the tool at their own pace. They love when they find new suggestions for word choice. And best of all, because they are the ones using the tool and calling the shots, they are learning to use these techniques themselves.
Of course, BriefCatch can’t replace a good writing teacher or a good editor. Tools like this are a powerful supplement to help train and spot style techniques; they are not meant to teach aspiring lawyers how to put together the meat of a brief.
But that’s the beauty of a tool like BriefCatch: it lets professors devote time and energy to what we do best while shoring up our students’ skills in ways they don’t even realize.
How do you use technology to improve your students’ legal writing skills? Share your good ideas at TeachLawBetter.com, and we might just post them.
Making the Grade
I recently had the pleasure of chatting with a wonderful colleague who is teaching Legal Writing for the very first time. She had just released Memo One grades to her anxious 1Ls. During the conversation that ensued, I shared with her several things I wish I’d known as a first-year professor that specifically pertain to grading – lessons that I’ve sometimes had to learn the hard way through the years. Here are just a few:
Is Law School Really Like the Hunger Games?
By: Professor Heather Gram (Wake Forest Law)
I recently heard a 1L say that she expected her first year of law school to be something akin to The Hunger Games, a brutal “fight to the death” contest depicted in the wildly popular book trilogy by Suzanne Collins. While law school is a competitive environment filled with diverse and talented people, it does not have to be such an overtly negative experience. In law school orientations across the country, incoming law students too often receive the message that they must “survive” law school. But I tell my students the opposite: that it is possible (and preferable) to thrive in law school, not merely survive. If you are going to devote three years of your life (and perhaps a significant amount of money) to law school, why not make it the most positive and productive experience possible? Here are some tips on how to make that happen: (more…)
Take One: The World Premiere of an Exciting New Resource on Pop Culture Pedagogy
Have you ever wondered what Star Trek could teach you about the U.S. Constitution or how an episode of The Good Wife could demonstrate best (or bad) practices during e-discovery? You’ll find the answers in an exciting new teaching resource — The Media Method: Teaching Law with Popular Culture, (Carolina Academic Press 2019).
Editor Christine Corcos of LSU School of Law has compiled twenty-seven interesting chapters chocked full of wonderful ideas for using pop culture as a fun vehicle to teach legal concepts on a vast array of diverse topics. She compiled works from law professors around the globe who integrate everything from poetry to comic books into their teaching.
While legal legend and author of Reel Justice, Michael Asimow, discusses how the lived experience of a lawyer often differs from its portrayal on the big screen, Deborah Ahrens shares how musical theater impacts her approach to covering difficult criminal law topics with her students. Other chapters showcase how to use pop culture as a vehicle to study Torts, Property, Civil Procedure, Evidence, Environmental Law, Professional Responsibility, and Constitutional Law. Nancy Soonpaa, JoAnn Sweeny, Sha-Shana Chricton, Terri LeClercq, and many more highlight creative ways to incorporate pop culture into Legal Research and Writing, including exercises focused on timely and important social justice issues. In Magical Thinking, Kelly Collinsworth explores how pop culture may be an equally effective vehicle to introduce college students to legal analysis.
My chapter — Pop Culture Pedagogy — explores the potential benefits and downsides of using pop culture in the law school classroom. I’ve included an excerpt of pages 68-69 below, although citations have been omitted:
Pop culture surrounds us. We lead “media-saturated lives” infused with influences from film, television, social media, and other aspects of pop culture. For better or worse, these influences significantly impact how we view ourselves, our profession, and our world. Our tech-savvy law students are particularly susceptible to these influences. Thus, if legal education hopes “to survive these pop culture ways of knowing and meaning, it too must transform.”
Prompted in part by calls for law school reform from the bar, legal educators struggle to find innovative ways to effectively reach the increasingly diverse and globally minded digital natives flooding our classrooms. This chapter suggests that when properly used, “pop culture pedagogy” may provide one such innovation — an “ideal medium” to “complement” black letter law and thus better promote learning and engagement, particularly with regard to professionalism.
As used herein, “pop culture” refers broadly to “the body of intellectual or imaginative work in which human thought and experience are recorded.” As such, it encompasses cultural references that derive from traditional and non-traditional print media, including poetry, blogs, and graphic novels, as well as the so-called “public arts,” such as film, radio, television, video games, music, social media, and other Internet sources.
Likewise, “pop culture pedagogy” refers to teaching both with and about pop culture. For example, a Trial Advocacy professor teaching with pop culture might assign a chapter from Mauet’s Trial Techniques regarding how to draft and deliver an effective closing argument. In class, the professor could show film clips of closing arguments from A Time to Kill and Ghosts of Mississippi and ask students to work in pairs to draft a short reflection paper explaining which closing argument was more compelling and why. An Appellate Advocacy professor seeking to reinforce how citing authority enhances an advocate’s credibility at oral argument might show the scene from Law Abiding Citizen when accused killer Clyde Shelton cites a case in support of his contention that he be granted bail. In part because opposing counsel is unfamiliar with the cited case and provides no authority to counter it, the judge proceeds to grant Shelton’s motion even though his citation was a ruse.
With the advent and widespread availability of new technology, pop culture has increasingly become an integral part of the human experience. Millennials – individuals born between the early 80s and mid 2000s — are indisputably the most “connected” generation in history, constantly bombarded with a vast array of cultural texts through which they construct meaning about themselves and their world.
Today’s law students undoubtedly consume more mass media than prior generations. With an IPhone in hand, AirPods in their ears, and an Apple Watch on their wrists, they experience the world amidst a backdrop of technological distractions, mentally multitasking every minute of the day. Given the sensory overload to which students constantly subject themselves, educators grapple with how to more fully engage them.
I ultimately conclude that “pop culture pedagogy provides an easy and inexpensive way to bring [the] world into the classroom and share a glimpse of it with our attorneys-in-progress.” (p. 93)
To learn more about how you can teach law with pop culture, purchase a copy of the book from Carolina Press, Amazon, or other retailers. That’s a wrap!
Do you use pop culture as a vehicle to teach legal doctrine or skills? If yes, share your good ideas at teachlawbetter.com, and we might just post them.
Wanted: Law Students Who Can Write
It’s that time again – the part of the semester when nervous students anxiously buzz around the hallways decked out in black, pinstripe suits and power ties. They carry fancy leather-bound portfolios and practice “firm handshakes” to make a good first impression during on-campus interviews. But too often when I speak to potential employers, I hear the same refrain: Law schools need to do a better job of teaching strong writing and editing skills.
I agree. Legal writing, analysis, editing, and research are fundamental skills at the heart of effective lawyering. No person can be a competent attorney without them. And even when we do our best to prepare students for the practice, we should always strive to do better. But as budgets tighten and the number of core faculty shrink at law schools across America, law professors in general, and legal writing professors in particular, often find themselves between a rock and a hard place expected to do much more for students with far fewer resources at their disposal.
This begs the question: What can legal employers do to identify and attract the best writers? Perhaps they should change the way that they hire. (more…)