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Jordan Furlong

Competence Starter Kit

By: Jordan Furlong, Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant

In a previous post, I discussed how the Law Society of British Columbia (the regulator of lawyers and legal services in the province of B.C.) asked me to suggest reforms to its lawyer licensing system. In my 82-page report submitted in May 2022, I recommended that B.C. create a competence framework for entry-level fitness to practice law and design a competence-based licensing system based on that framework. In September 2022, the Law Society accepted that recommendation.

In my report, I was reluctant to give the Law Society my opinion on the proper constituent elements of entry-level competence in their province. That decision has to be made by experts with much more experience and proficiency than me, in consultation with a very wide group of stakeholders.

But I was invited to consider that there would be value in suggesting a sort of “starter kit” of competencies in a suggested framework, in order to guide the earliest stages of the consultation process and give the directors a sense of what such a framework might look like. After extensive research and reflection, I came up with the following:

  1. Knowledge of the Law
    • Administrative law and procedure
    • Business and corporate law and procedure
    • Civil litigation, procedure, and remedies
    • Contract law and drafting
    • Constitutional law
    • Criminal law, procedure, and sentencing
    • Evidence
    • Family law and procedure
    • Legislative, regulatory, and judicial systems
    • Property and tenancy law and procedure
    • Torts
    • Wills, estates, and trust law and procedure
  1. Understanding of a Lawyers Professional Responsibilities
    • Client confidentiality
    • Client trust accounts
    • Conflicts of interest
    • Fiduciary duties
    • Select other aspects of the Code of Professional Conduct
  1. The Skills of a Lawyer
    • Gather relevant facts through interviews and research
    • Carry out legal research
    • Conduct due diligence
    • Draft essential legal documents
    • Solve problems using legal knowledge and analysis
    • Help negotiate solutions and resolve disputes
    • Advocate for a client’s position
    • Provide legal advice to clients
    • Use law practice technology
    • Fulfill the basic business and professional requirements of a private law practice
  1. The Skills of a Professional
    • Establish, maintain, and conclude a client relationship
    • Establish and maintain respectful and collaborative relationships with colleagues and others
    • Communicate accurately and concisely, verbally and in writing, to different audiences
    • Understand and use information management systems effectively
    • Understand and use financial management systems effectively
    • Manage projects and responsibilities to ensure they are completed efficiently, on time, and to an appropriate professional standard
    • Organize one’s time and activities to ensure the prompt and successful fulfilment of one’s obligations.

This starter kit can serve as a useful tool for regulators in Canada and, hopefully, the United States, as well as law schools across the continents, in determining what competencies every first-year lawyer should possess.

For an example of what a competence framework for lawyer development and licensing might look like, check out the Building a Better Bar project at the Institute for the Advancement of the American Legal System, and of course, the Roadmap for Employment at the University of St. Thomas School of Law. Also, Professors Neil Hamilton and Jerry Organ have done extensive and fantastic work on professional competence development and professional identity formation.

If you have any questions or comments about this post, then please email me at jordan@law21.ca.

Jordan Furlong is a Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant.

Jordan Furlong

Coming Soon: A Competence-Based Approach to Law Licensure

By: Jordan Furlong, Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant

Nobody is happy with the bar exam, and nobody should be. Licensure candidates who borrow and spend heavily and study for years to earn a law degree have to hit the books again, immediately after graduation, to prepare for a much tougher set of legal knowledge tests whose results actually matter.

Scarcely more than two-thirds of all candidates pass the bar exam, with failure rates especially high among repeat test-takers and members of racialized communities. And nobody has ever established a link between bar exam passage and competence to practice law.

Even the organization that sets the bar exam admits the current version needs to be improved, although the NCBE doesn’t intend to introduce a revamped version until 2026. And if you’re not aware of the serious issues with how the bar exam is executed in practice, go to Twitter and search for the hashtag #barpocalypse. Prepare to be appalled.

The whole situation needs improvement, and every day more people find themselves asking, “Is this really the best we can do? Isn’t there any other way to determine if a person is competent to be admitted to practice law?” As a matter of fact, there is — and a recent development in Canada, to which I’ve contributed, might have brought us a little closer to that better way becoming reality in the United States. That better way, competence-based licensure, represents the future of bar admission.

In our current system, a candidate acquires knowledge-based credentials from a third party (a law school and a board of bar examiners), and regulators accept those credentials as a proxy for readiness to practice law. Nobody directly assesses whether the candidate is actually competent to practice law, in terms of their knowledge, skills, attributes, and experiences. As a result, successful candidates enter the profession plagued by impostor syndrome, while unsuccessful candidates are left to wonder why they fell short.

In a competence-based law licensing system, by contrast, the regulator identifies the precise knowledge, skills, attributes, and experiences that a candidate must possess in order to be minimally competent to practice law, and it creates an accessible process through which candidates can prove to the regulator that they possess those competencies.

In a competence-based licensure system, everyone knows what’s required of a new lawyer, and anyone can acquire and demonstrate possession of those attributes. It’s a far more equitable, rational, defensible, and transparent licensing system. And it’s already been proven to work.

The Solicitors’ Regulation Authority of England & Wales was the first regulator to introduce a competence-based licensing system a few years ago. The SRA, following a lengthy and comprehensive period of study and consultation, identified the essential knowledge and the core competencies of a “Day One” solicitor, as well as the level of proficiency required of each competency at the point of professional entry.

These “competence statements” from the professional regulator then formed the basis of two challenging sets of entrance exams (one for knowledge, the other for practice skills). Combined with a two-year apprenticeship requirement, they replaced all previous requirements for entry to the solicitor profession in England and Wales.

Perhaps the most important aspect of the SRA’s switch to a competence-based systems is this: a law degree is no longer required in order to become a lawyer. The SRA reasoned that if a candidate could pass its difficult entrance exams, that candidate clearly possessed the legal knowledge and skills to be a lawyer.

Crucially, the SRA does not care how a candidate acquires that knowledge and skill. Unlike regulators in the United States, it does not require a licensure candidate to acquire two very similar sets of knowledge credentials. It only cares that the candidate can demonstrate to the regulator possession of the core competencies of entry-point practice. The regulator encourages candidates to acquire that ability in any number of ways.

Competence-based licensure has also emerged as part of the bar admission system in parts of Canada over the past few years. Four Canadian provinces use an entirely skills-based bar admission course called the Practice Readiness Education Program (PREP), which is based on an innovative skills-oriented competence framework. And just last year, the province of New Brunswick introduced a detailed competency profile to accompany its new bar admission program.

This was the context in which the Law Society of British Columbia (the regulator of lawyers and legal services in the province of B.C.) asked me last year to suggest reforms to its own lawyer licensing system. The Law Society of B.C. was familiar with my 2020 report and recommendations to the neighboring Law Society of Alberta, “Lawyer Licensing and Competence in Alberta,” which touched on several similar topics. My 82-page report, submitted in May 2022, recommended that B.C. create a competence framework for entry-level fitness to practice law and design a competence-based licensing system based on that framework. In September, the Law Society accepted that recommendation.

The system I recommended for B.C. most closely resembles the SRA’s approach in England & Wales. I suggested that the Law Society engage in extensive consultations with myriad stakeholders in the legal sector — not just lawyers — to determine the essential knowledge, skills, attributes, and experiences that reflect what a member of the public had a right to expect from a lawyer on their first day in practice.

But I also warned against making that competence framework a “wish list” of ideal lawyer attributes, specifying hundreds of different competencies that candidates must acquire and proficiently demonstrate for licensure. “Day One” competence, while it must meet minimum standards, should not be any higher than that; otherwise, you’re just creating (another) barrier to professional entry. In a separate and upcoming post, I will share my suggested “starter kit” of competencies that new lawyers should posses.

Beyond that core recommendation, I made several other non-binding suggestions to the Law Society, including the hot-button idea of dropping the law degree requirement, introducing new instruction in professional responsibility and professional awareness, and making major reforms to the “supervised practice” requirement that all Canadian law licensure candidates must fulfill before bar admission. The Law Society of B.C. has left decisions on all these points to a specially appointed task force.

It will still be several years before the first cohort of lawyers licensed through a competence-based system enters the British Columbia legal profession. Designing a competence framework for lawyers is a major undertaking, all the more challenging given the rapid shifts in our profession and society. Building a licensing process around that framework is another huge job. This is going to take a while.

But it should also change, for the better, the process by which people in B.C. become lawyers. By abandoning an archaic and opaque credentials-based system, and embracing a modern and transparent competence-based system, the Law Society of B.C.  will increase public and professional confidence in the ability of lawyers to do their jobs from Day One. It will bring lawyer licensing into line with other professions’ admission systems and go a long way towards defeating “impostor syndrome” among new lawyers.

My sincere hope is that my report dovetails with the existing and burgeoning efforts in other jurisdictions (especially Oregon), so that our profession will one day boast a lawyer licensing system based not on a series of inadequate and exclusionary proxies, but on demonstrated competence to practice law. The public in general, and our clients in particular, deserve at least that much from our profession.

Should you have any question or comments about this post, please feel free to contact me at jordan@law21.ca.

Jordan Furlong is a Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant.

  

 

Neil Hamilton

The Standard 303 Revisions Require a Developmental Sequence of Modules in the Curriculum

By: Neil Hamilton, Holloran Professor of Law and Co-Director of the Holloran Center for Ethical Leadership in the Professions, University of St. Thomas School of Law

The Standard 303 revisions require each law school, over time, to move toward a developmental sequence of modules fostering student reflection and growth regarding professional identity.

  1. New Standard 303(b)(3) requires that “a law school shall provide substantial opportunities to students for the development of a professional identity.” (emphasis added regarding the developmental nature of professional identity and the number of opportunities).
  2. New Interpretation 303-5 defines professional identity. “Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of a professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” (emphasis added regarding the developmental nature of professional identity).
  3. New Interpretation 303-5 continues, “Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities for such development during each year of law school and in a variety of courses and co-curricular and professional development” (emphasis added regarding the developmental nature of professional identity and the number of opportunities).

The Standard 303 revisions clearly require each law school to create a developmental sequence of opportunities for reflection and growth over time so that each student explores and internalizes the values, guiding principles, and well-being practices considered foundational to successful legal practice. This developmental sequence of opportunities to foster each student’s professional identity requires coordination and progression among the modules.

The empirical research on professional identity formation strongly supports guided reflection in one-on-one coaching (especially in the context of authentic professional experiences) as the most effective curriculum to foster this type of student growth. The one-on-one coaching engagements also provide some basis for expert observation necessary for program assessment of our professional identity learning outcomes. There is no empirical evidence that doctrinal coverage and analysis of professional identity topics without guided reflection will make any difference with respect to student development.

  1. New Standard 303(c) requires that a law school shall provide education on cross-cultural competency, equal access, and the elimination of bias, discrimination, and racism at the start of the program of legal education and at least once again before graduation.
  2. New Interpretation 303-6 states that these same values should be included in the Professional Responsibility course.
  3. Since the definition of “professional identity” in Interpretation 303-5 focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society, and the Interpretation also provides that professional identity development should involve an intentional exploration of the values of the profession, it seems reasonable that the values of cross-cultural competency, equal access, and the elimination of bias, discrimination, and racism should be included in the developmental sequence of opportunities for reflection and growth over time so that each student explores and internalizes them. Again, this developmental sequence of opportunities to foster each student’s professional identity requires coordination and progression among the modules.

It may be that the common committee structure for law school faculties will not be effective to foster this type of change in the curriculum. Curriculum Committees, in my experience, are responsive to proposals for individual courses, and are not generally pro-active in generating coordinated modules across the curriculum. A Curriculum Reform Task Force might contribute initially to this type of coordination, but again, my experience is that the reports of this type of task force end up in a type of “graveyard” with other past curriculum reform task force reports. The type of coordinated change envisioned here is going to take ten to twenty years – one small step at a time. I think the most effective answer is a pro-active Coordinated Standard 303 Modules Committee with membership from all the staff and faculty functions that affect student professional identity formation.

If you have any questions or comments about this post, then please contact me at NWHAMILTON@stthomas.edu.

Neil Hamilton is the Holloran Professor of Law and Co-Director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law in Minnesota.

Eric Goldman, Laura Norris

Successful Outcomes from Santa Clara Law’s Tech Edge JD Experiment

By: Laura Norris, Associate Dean for Academic Affairs, Associate Clinical Professor, Director of the Tech Edge J.D., Co-Director of the High Tech Law Institute,
Santa Clara University School of Law

Eric Goldman, Associate Dean of Research, Professor of Law, Co-Director of the High Tech Law Institute, Santa Clara University School of Law

In 2018, Santa Clara Law launched an important new program called the Tech Edge JD (TEJD). It is a certificate for JD students with several design features centered around skill-building and professional identity formation. TEJD requires students to complete a series of milestones to give them the experiences employers expect Silicon Valley professionals to have. TEJD students get support from a faculty/staff advisor, two practitioner mentors, and the entire TEJD community.

TEJD has achieved some remarkable outcomes in its first four years. This blog post highlights three: improved admissions yield while increasing incoming LSAT score, increased racial diversity, and improved employment outcomes.

Incoming students apply to TEJD at the same time they apply to law school. Admission is discretionary based on supplemental essays and a video interview. LSAT/GPA isn’t part of the TEJD admissions criteria, but TEJD cohorts nevertheless have higher LSATs than their overall Santa Clara Law classes.

Despite the higher LSAT scores of incoming TEJD students, their yield has been 11-29% higher than the school’s overall admissions yield. This indicates that TEJD helps the law school compete for students with more choices.

Santa Clara Law is already a racially diverse law school, but TEJD has outperformed the law school’s racial diversity rates. This enhanced diversity may reflect the downplaying of LSAT/GPA in TEJD admissions decisions.

Though TEJD requires students to spend substantial time on activities outside the classroom to complete their milestones, this has not come at the expense of academic achievement. TEJD students have higher law school GPAs than the overall class, even on an LSAC-adjusted basis.

TEJD students have also had improved employment outcomes. The first cohort (graduating class of 2021) had 100% employment their 1L summer (most paid, some externships). That cohort had 80% employment on graduation (+40% compared to overall Santa Clara Law grads) and 100% employment 10 months later (+18%).

We think TEJD represents an important innovation in legal education with many potential lessons for the legal education industry. Our paper, “How Santa Clara Law’s “Tech Edge JD” Program Improves the School’s Admissions Yield, Diversity, & Employment Outcomes,” spills all of the details, including how the TEJD program is designed and what we think worked and what didn’t. The article also does the following: identifies what we think are the keys to TEJD’s success; discusses students’ self-identification during the application process, the pre-orientation TEJD orientation, and students’ professional identity formation early in their law school careers; and describes the extensive advisor/mentor support. The features of TEJD can be easily adopted by other schools, with or without replicating TEJD.

Should you have any questions about the TEJD program or if you would like to discuss how your school can adopt the program (or aspects of it), then please contact Dean Goldman at egoldman@gmail.com or Dean Norris at lnorris@scu.edu.

Laura Norris is the Associate Dean for Academic Affairs, Associate Clinical Professor, Director of the Tech Edge J.D., and Co-Director of the High Tech Law Institute at Santa Clara University School of Law.

Eric Goldman is the Associate Dean of Research, Professor of Law, and Co-Director of the High Tech Law Institute at Santa Clara University School of Law

Sarah Beznoska

Professional Identity Formation and First-Generation Law Students

By: Sarah Dylag Beznoska, Assistant Dean for Student and Career Services,
Cleveland-Marshall College of Law, Cleveland State University

It comes as no surprise to those of us who work with law students on first destinations and career paths that when the National Association for Law Placement (NALP) studied national employment statistics for the graduating class of 2020, it found that whether or not you are a first-generation law student impacts your career outcomes in the law.

NALP reported: “Overall, Class of 2020 continuing-generation JD students (graduates who have at least one parent or guardian with a JD degree) and continuing-generation college students (graduates who have at least one parent or guardian with a bachelor’s degree or higher, but whose parents/guardians all lack a JD degree) had a higher employment rate and were more likely to be employed in a bar passage required/anticipated job than their first-generation college student peers.”

The Law Student Survey of Student Engagement (LSSSE) also consistently highlights important disparities related to first-generation law students. From LSSSE, we know that first-generation law students bear more law school debt and face significant stressors related to debt. We know that “the amount of time that first-generation law students [spend] with peers and faculty outside of class [is] significantly less than non-first-generation law students.” LSSSE data has shown that first-generation students also participate in co-curricular opportunities at a lower rate that non-first-generation students, spend more time studying, and spend more time working to support themselves.

This data should be important to everyone in the legal industry, especially as we talk about diversifying our workplaces and our leadership. It is particularly important to me as someone who works in career services at an urban law school that serves a significant population of first-generation college and law students. To provide the best student and career services to our students, we are continually assessing our work through the viewpoint of first-generation students and making adjustments to provide better support.

This assessment can be done for professional identity formation (PIF) too. Understanding and accounting for the unique experiences noted above is critical to developing any comprehensive PIF plan. On the positive side of things, schools can leverage PIF to build belonging for first-generation students. At the same time, being mindful about the time constraints sometimes faced by first-generation students might inform the methods a school chooses for offering PIF opportunities.

First-Generation Students and Law School Culture: Professional Identity to Build Belonging

Belonging matters to law student success, and most especially to first-generation law students. The unique culture of law school and the legal industry can be a challenging adjustment even when someone has lawyers in their family. Without knowing any lawyers or having people already in their network to ask for help, first-generation law students can feel like outsiders from day one. (For some insights on the first-gen experience see: https://abaforlawstudents.com/2021/08/25/first-generation-law-student-challenges/ and https://abaforlawstudents.com/2020/01/01/how-to-thrive-as-a-first-generation-law-student/).

For this reason, I have sometimes been skeptical of the premise of professional identity formation that focuses on students moving from an “outsider” in the profession to an “insider” in the profession. As someone who was a first-generation law student myself (although I was not the first in my family to attend college), I know very personally that not having lawyers in my family or lawyers in my network impacted my law school experience in a negative way. From day one of law school, I internalized deeply that I did not belong and, although my law school trained me well on the doctrinal skills, I never once came to a place there where I felt like an “insider.”

It is because of this personal experience, however, and because of the commitment I have to making sure that first-generation students at the law school where I work never feel this same way, that – as much as I can be skeptical about the terminology of PIF – I think PIF can be leveraged to build more belonging. There are a variety of ways a school might use PIF to increase belonging. For example:

  • Self-Assessment and Industry-Focused Panels: having students complete self-assessment exercises allows them to identify strengths and values that they bring with them to the profession. Taking it a step further, once schools provide an opportunity for students to identify their strengths and values, schools can offer diverse panels of attorneys to demonstrate the varying skillsets that can make someone successful. Providing students with opportunities to know their own strengths and then to see those things in successful practitioners can help them to feel like there is a place in the law for them and who they are matters.
  • Mentoring: providing thoughtful mentoring opportunities allows students to feel less alone in their journey through law school. Schools can engage alumni, peers, faculty, and staff in formal and informal mentoring programs with students, giving them a broad set of people to whom they can turn for support. Consider, also, having faculty, staff, or alumni identify themselves to students as first-generation students, so that your first-generation cohort has examples of first-generation success stories.
  • Student Organizations: schools can support student leaders to create a robust community of student engagement and a space where students can connect with each other and feel less alone. Connecting student organizations to a school’s alumni network can be helpful and assisting student organizations with career-related programs can give students more opportunities to understand the variety of paths in the law.

These three things have worked for us as a starting point to increase belonging at Cleveland-Marshall College of Law. We start at day one when we dedicate a portion of our Orientation to professional identity. This Orientation program covers the essential eligibility requirements for the practice of law in Ohio and the 26 Lawyering Effectiveness Factors. More importantly, it includes diverse panel speakers who reflect on what these things mean in their practice, along with when and where they developed these skills.

We also require incoming law students to complete the Law Fit assessment, and we use those assessments with them in their meetings with career advisors. In addition, together with my team in Student and Career Services, we have built a one-on-one alumni mentor program and a one-on-one peer mentor program for every first-year student who enrolls with us. Later this Fall, we will offer a Storytelling event to our student body, in partnership with our First-Generation Law Student Association, focusing on things like times when we and they have felt imposter syndrome and why one’s personal story matters.

First-Generation Students and Time: Creating Meaningful Space for Students to Reflect

One of the foundational concepts behind PIF is reflective thinking and opportunities for reflective exercises to help students understand their values, the values of the profession, and the competencies required to be a successful lawyer. Reflection, in turn, requires time and space that are carved out to allow specifically for it. Time is a valuable resource for all students, but especially for first-generation law students. Therefore, PIF plans must be mindful of these time constraints.

There are a lot of reasons why first-generation students might not have time for PIF. For example, if they are working significant hours outside of the law school in legal or especially in non-legal jobs to support themselves, if they face family or personal expectations or obligations (especially from family members or personal connections who are unfamiliar with the legal industry), if they are trying to plan the logistics of taking two months off (unpaid and without benefits) after graduation to study for the bar exam, or if they are de-railed by a financial, health, or other crisis without social capital or resources to support them. In the optional space of Student and Career Services, when we support students with challenges like these, there is sometimes precious little time or energy available to ask students to reflect on how a chosen work or academic experience contributes to their professional identity.

Worse, when I see my first-generation students struggling with time, I worry that PIF will feel to them like optional engagement that is only possible for those law students who are supported by deep family resources or who are not struggling with other life priorities. I also worry whether they will trust me if I ask them to add to their already overflowing plates the additional work required by PIF. Notably, I believe these students are frequently already very self-directed learners, but they are people with clear and important demands on their time that often do not leave room for any optional piece of the law school curriculum.

For this reason – to bring all students along in PIF – schools must be creative about how and when to include PIF in the law school experience, and be respectful of the time constraints students might face, depending on their circumstances.

  • Bring PIF to Students: one option, of course, is to build into the existing curriculum opportunities for reflection and discussions about professional identity. But, if that won’t work for your school/classroom, schools might consider inviting the career services team to stop by before or after classes to provide handouts or resources that are aligned with related career paths. Schools can emphasize the importance of related programming that is happening outside of the classroom and encourage students to make strategic decisions about which to attend. Schools can include in other required spaces – Orientation, graduation-required courses, student leader trainings – information about building lawyering skills. Schools can encourage students to work with academic advisors, staff, or alumni to create a plan that works for them, and schools can help those advisors, staff, and alumni to have the PIF information they need to be impactful.
  • Create a PIF-focused Course: changing the curriculum to include a new course is another option, and one that may or may not be a fit for a school. For better or worse, however, we know that in a world impacted by COVID, general student engagement in optional parts of the law school experience is significantly decreased. Add to that the time constraints we know our first-generation students face and we simply cannot wait for students to come to us. As I’ve learned from my colleagues in the undergraduate space, we are responsible for finding ways to go to them. One way to go to them is to create a credit-bearing course that will reward students for doing PIF work while creating a meaningful space for first-generation and other time-strapped students to include the work among their other priorities.

At Cleveland-Marshall College of Law, Students and Career Services has seen some movement with bringing PIF to students. For example, my department no longer expects that attendance will be robust at optional career related programs. Instead, we collaborate with student organizations on panel presentations and visit their student organization meetings to connect. We bring handouts and resources to student-run events, instead of requiring them to come to us for the information. We try to model the behavior we are seeking from students by showing up to the programs and panels that they have organized rather than simply demanding they show up at ours. We also leverage our alumni and peer mentor programs to provide resources to students. It is clear to us that peer-to-peer advising among students is at an all-time high, and rather than discourage or limit this connection, we provide information and resources to support it.

Perhaps most importantly, we try to ask students for input on what kinds of activities will help them most when it comes to lawyering skills. Without exception, they prefer activities that require engagement from them, opportunities to become involved in the community through pro bono work, and learning experiences where they connect with others. As a result, we are adjusting our traditional Student and Career Services programming to offer more of these kinds of experiences, and fewer lectures/presentations, while also incorporating reflective coaching questions into our everyday conversations with students.

Conclusion

Supporting first-generation law students to succeed is a critical component of increasing diversity in the legal industry. When PIF is offered thoughtfully and in a way that is mindful of time as a resource, it can be a place where schools can provide that support, not just through efforts focused on belonging, but also efforts focused on financial wellness, building support networks, introductions to professional norms, and academic planning.

If you have any questions or comments about this post, then please feel free to contact me at s.beznoska@csuohio.edu.

Sarah Dylag Beznoska is the Assistant Dean for Student and Career Services at Cleveland-Marshall College of Law at Cleveland State University.

Christopher Corts

Better Conversations? Let’s Talk About It. (Part 2)

By: Christopher Corts, Professor of Law, Legal Practice, University of Richmond School of Law

Hello, again, readers! Today I am writing the second of a two-part series devoted to the art of facilitating better conversations about controversial topics. When we convene these kinds of conversations, we need to be especially attentive to the possibility that some number of listeners are likely to hear perceptions, opinions, beliefs, and values that are in tension with, and sometimes oppositional to, their own—and that some speakers will need to feel comfortable uttering those kinds of polarizing comments, too.

Last month, in Part I, I explained why I think new ABA Standards 303(b) and (c) present an important opportunity for law schools to have some hard but necessary public conversations about racism, bias, and inter-cultural competency. I suggested that, if we are going to effectively teach students how to internalize a professional responsibility for clients and the integrity of the legal system [as we must, under Standard 303(b)], we will necessarily need to help students learn how to detect, address, and overcome the pernicious effects of racism and bias [Standard 303(c)] in our own profession. And: in our own institutions, which collectively help to constitute the state of “the profession” that we are all obligated to critically assess, strengthen, and reform.

All of this means that we will need to facilitate a different kind of conversation within our communities—one that does not involve debating, arguing, or problem-solving. We need conversations that can help to clear the air, establish the state of things as they are (and not as we hope or wish them to be), and give public voice to important, deeply held viewpoints that some stakeholders might be reluctant to share, especially if they perceive those viewpoints to be at odds with official messaging or apparently-prevailing sentiments within the group.

When I facilitate these kinds of hard conversations, I have four primary, process-oriented goals in view (which, astute readers will notice, could also be read as value statements):

  • give every person an opportunity to speak about a given subject (or: to decline to speak on that subject);
  • elicit candid and forthright comments about things that are most meaningful to the speaker, especially the kinds of statements about deeply-held personal perceptions, opinions, values, and convictions that are at odds with official messaging or prevailing opinions in a group (which may not ordinarily be heard in public, community-wide conversations that are efficiently managed to meet the aims of organizers running an agenda that they set);
  • strive—with curiosity, compassion, and non-attachment to any particular outcome—to discover the full, true range of views that constitute the community as it just-is;
  • create opportunities to be together as a community through periods of shared silence (rather than defaulting to treating silence as something to be feared, avoided, or filled with noise).

All of this takes a lot of time to do well. Without giving adequate time, we cannot hope to let everyone speak, cannot build trust within the group, cannot elicit comments about the deepest and most meaningful things, cannot fully hear and appreciate the true state of things, especially when the true state of things includes profound, meaningful disagreements.

Today, in Part II, I want to give some concrete suggestions for how to plan, stage, and facilitate these kinds of public conversations to achieve the goals outlined above. We need rules and norms to keep everyone invested in the same process. And to do that we need tools and techniques to help us make these conversations slower, less reactive, more intentional, more inclusive, and personally-meaningful to each individual present.

Birthed in my own experiences with inter-faith and ecumenical dialogues while completing my seminary education prior to law school, the suggestions that follow have been refined and further developed during my past decade in legal education and service to the broader community that goes with it. These suggestions reflect communication principles and practical techniques that will be familiar to anyone who has ever experienced non-violent communication, mindful communication…or a Quaker meeting.

Whenever I approach these kinds of difficult conversations, my aim is to try and find a way to facilitate mutual compassion, respect, and trust among participants. Trust makes broader participation more likely, and it makes deeper participation more likely, too. In my experience, when trust exists, it can improve the quality of conversation by improving the likelihood that candid, authentic, contrarian points of view will be voiced—and heard.

Here are a few ideas for how you might facilitate these conversations in a more inclusive and meaningful way. In addition to increasing the likelihood of quality participation from the greatest number of participants (as speakers and listeners), the rules in this list are designed to improve access to the conversation by (a) reducing the costs of speaking for socially-anxious and marginalized participants, while also (b) reducing the possibility that socially-confident participants will be able to grandstand or dominate the discourse.

  1. Consult with experts. The suggestions I am offering are process-oriented. But, especially when it comes to matters of racism, bias, and inter-cultural difference, in the interest of pursuing institutional-level policy reforms—as we must—we all benefit from expert help. There can be no substitute for the wisdom and guidance of experts who have dedicated their professional lives to helping institutions address and fix the wide range of complex problems caused by bias, racism, and a lack of inter-cultural fluency in our organizations.And, at the individual level, we can all benefit from consulting books written by experts. I recommend Rhonda Magee (a lawyer and law professor) and Ruth King (founder of the Mindful of Race Institute, LLC). Both are well-published and write in an accessible way that is especially helpful for deftly navigating the intersection of mindful communication and race in a way that invites maximum participation and deep, compassionate engagement.
  2. Facilitate small group conversations. Public conversations that elicit maximum participation and candor are not possible in mass groups. The smaller the group, the more questions that can be asked and the more topics that can be covered in the same amount of time.How small do the groups need to be? In my experience, six to eight is optimal (for reasons that I hope will become more obvious as you keep reading). Ten to twelve is doable. More than twelve will severely undercut your ability to realistically include all speakers and invite them to contribute with depth and authenticity. This takes many facilitators for many groups, potentially, but one organizing facilitator can come up with the question prompts and guidelines for all of the groups to use and then just leave it to a number of volunteer facilitators to implement at the small-group level. If they can read and follow directions, then they can facilitate.
  3. Seat each small group in a circle. Staging matters. When you facilitate a hard conversation, you have the ability to stage it in a way that can make participation easier—or more burdensome. By creating a circle for conversation, you can help speakers speak and listeners hear.This is not just about achieving a certain form; it is more than just staging and optics. It is also a show of values. And it enhances superior functioning in the group. Sitting in a circle eliminates hierarchies that exist when a podium, stage, microphone, or another arrangement that confers a superior position to one person (the speaker, usually) distinct from all others. In a circle, everyone is seated side-by-side. There is no privileged place for the facilitator, no privileged place for any speaker. There is no person drawing focus in the center of the circle, and no person is (literally or figuratively) outside of the circle. Everyone can see everyone else as an equal within the same circle of concern.
  4. Create rules that make candid participation possible for the most people. To achieve maximum participation, we need to create conditions that make it more likely that everyone, wherever they sit, will feel comfortable offering statements of deeply-held conviction, personal experience, and subjective perception. Some people may be more inclined to do this than others by nature, culture, or socialization, but we want to make it easier for everyone to feel safe bringing hidden things to light—especially sincere statements of personal perception, value, opinion, or belief.Setting rules for equitable, inclusive discourse from the outset of your conversation can help. I will reserve a future blog post to explore the fine art of crafting a beautiful reflection question. But for now, the basic idea is that you want to create questions that are open-ended enough to elicit feedback that is most meaningful to each speaker, but targeted enough to elicit the kinds of hidden opinions and contrarian points of view that you, as facilitator, have designed this conversation to expose.At a minimum, you need rules about speaking and listening that can (1) establish confidentiality, (2) prevent interruption and cross-talk, (3) prevent a small number of participants from dominating the discourse, (4) prevent certain other participants from hiding or refraining from speaking (when they would be willing to do so, given the chance), (5) create a clear order of conversation that each participant can follow, (6) encourage speakers to speak freely and respectfully, (7) encourage listeners to hear charitably, and (8) invite everyone to strive for respectful, compassionate conversation that you can collectively (as a group) define for one another.[In my next blog post, I will give more detail about specific rules you can institute to make the achievement of these goals more likely. These rules are good rules for all kinds of public conversations you might convene in the ordinary day-to-day life of teaching or leading organizations. But they are especially helpful for achieving the goals of hard conversations as we have defined them in this series.]
  5. From start to finish—in your heart, and in your public expressions—keep seeking and valuing contrarian statements of difference and disagreement. This one might be counter-intuitive. There is a strong bias that pervades professional contexts in favor of being positive, constructive, and helpful. But if we are to successfully convene and facilitate a public conversation where the broadest number of people speak and hear the rawest, truest, most polarizing, controversial, and divisive opinions, we need to expect, accept, and normalize expressions of disagreement. Even better? We need to welcome We cannot bring divisions to light and begin a process of growth, healing, repair, and restoration unless we do. Dissent is by its nature disruptive; expressions of it always slow down the ability of the majority to get stuff done, and it always threatens to impede the ability of the majority to get everything they want. In a public conversation, we need to take special care to successfully welcome (and keep welcoming) dissenting viewpoints.As facilitator, by (a) helping to establish shared rules, norms, and values at the outset of the conversation and then (b) posing open-ended questions prompts that are designed to elicit frank feedback on targeted topics, you have tremendous power to help set the social-cultural conditions that are necessary for individuals to speak, hear, and hold disagreement about the things that matter most.It is possible—perhaps likely—that you will be trying to normalize dissent within the context of a community that, in the day-to-day order of things, does not always do a great job of seeking, hearing, and holding dissent? Whatever intended by officials in a community, or by the prevailing majority on a given issue, in practice, the expression of dissent can be impliedly vilified as an enemy of progress. Dissent upsets people. It slows things down. It frustrates decision-making. It destabilizes things. It hurts feelings. And, if we are not extra careful, dissenters can feel as if they are being vilified as enemies of progress…unless we figure out how to sincerely welcome and bless them in our circle of discourse.I think this concern for dissenters is especially important as “well-being” rhetoric becomes increasingly mainstream in law schools (and other legal environments). There are dissenters, laggards, and resisters to that movement, and—for a variety of very important reasons—they might not wish to perform mental health, positivity, or happiness in public spaces. As we try to create a “culture of well-being”, we may unwittingly coerce some into performing positivity in public spaces. These dynamics are at play whenever we try to have a hard conversation across deeply-held differences within a community of common concern.

So: what is the solution? Well, against the noble-seeming bias toward positivity and agreement, we can lead by example.

  • Use your power as facilitator to model the courageous, vulnerable behavior you seek to elicit. You do not need to pretend to be neutral. You can do more than strive to be positive/affirming; or, to put it another way: you can use your positivity and affirmation to welcome, endorse, and affirm dissent. Actively look for opportunities to express your own statements of dissent, difference, disagreement, criticism, objection, or resistance. Don’t be afraid to express negativity, skepticism, or pessimism about something. And, when you do, do it without apology. You can thus model the important truth: those kinds of statements are not a problem, and bringing them to light is one of the most important reasons for having this kind of conversation.
  • After someone expresses a criticism or a contrarian view, sincerely thank them for the comment. With curiosity, ask a follow-up question that doesn’t challenge their view (or a premise upon which it is based); instead, use your follow-up question to give the speaker an opportunity to further develop and voice that same line of thinking. With sincerity, ask questions designed to help yourself and other listeners try to better understand that dissenting point of view with more precision and detail.
  • As facilitator, take care to monitor and enforce the rules of conversation established by the group in unbiased ways. Those rules are in place to ensure that all speakers have the opportunity to express dissenting opinions in the clear, without being countered, corrected, interrupted, debated, disputed, or otherwise managed or controlled. You might be tempted to suspend the rules in order to “handle” or “manage” a certain kind of rogue message that threatens harm to institutional goals. Resist the urge to shut-down dangerous, disruptive comments (which can be distinguished from other kinds of harmful, violent comments that are directed towards individual persons; those kinds of comments can fairly be rebuffed without running afoul of your goal to encourage good faith dissent, criticism, disagreement, etc. in a non-personal, non-violent way).
  • As facilitator, you also have power to create question prompts that are designed to elicit criticism, dissent, or disagreement in indirect, less burdensome ways for your listeners and speakers.For example: you could invite speakers to imagine themselves as having absolute power to take action and fix something in the community—and then ask them to describe the change they would make, and why. Like this:If you had absolute, unilateral, god-like power to take action and change one thing about the way this law school handles [insert controversial topic that you hope to learn about]—what would it be? Why is making that change so important to you? How do you imagine the law school community would be better after you made that change? What would it look like?Notice: by identifying the thing that most needs to change, you are likely to find out about something that angers/frustrates/demoralizes the speaker, something the speaker wants to change. And you are able to discover the speaker’s preferred solution to the problem, including their reason for the solution. And you will help everyone catch a glimpse of the way the reformed world would look like, from the speaker’s perspective, once that thing the speaker wants to change gets fixed.In my experience, this question can elicit some surprising, thoughtful, deeply-felt responses. This kind of question can be applied to many different topics, and refined so that it is posed in a broad or narrow way.There are many other ways to directly or indirectly ask questions that can get people talking about things that, if not actively sought-out, would just remain hidden. Have courage! Get creative. See if you can find an easier way for someone to bring something they might ordinarily keep hidden to light.
  1. End with silence. When I facilitate, I like to close a hard conversation by leading everyone in a minute or two of silence. It creates a sense of ritual. It creates an ending. It gives space for everyone’s brain to transition away from the rigor of dialogue to whatever comes next. It also reinforces the value of slowness, which has permeated every aspect of the conversation circle.Sometimes, I make the silence symbolic. For example: I might tell everyone that we are going to observe the silence as a way of bringing our collective attention to the reality that, for all that has been shared today, there remains a number of true and meaningful things that have yet to be articulated. Silence helps us hold those mysteries in our collective consciousness.Or: I might invite everyone to sit together for two minutes in silence to show that, despite all of the differences expressed today, the silence we share is still big enough to hold us together in unity—despite whatever differences or disagreements we voiced and heard.Or: I might say that we will observe the silence by filling it with thoughts of gratitude for contributions made—by showing up, by speaking, by hearing, by caring.Or: I might say that we are observing the silence as a way of respecting the mystery of human existence. Like the ties that bind a community, the silence between us is fragile. And, like silence, the gift of community can be easily, thoughtlessly broken if we do not take care, give our attention to it, and hold it in our concern.Or: I might say nothing. I just invite people to sit silently together for a minute (or two). And leave it to each individual to figure out how to live in their minds during that period.

We need to normalize silence as an important part of public conversations. Silence gives time to think, breathe, reflect, pray, seethe, ruminate, calm yourself, meditate, daydream, whatever. If we let it? It can speak to us. It can draw us into an experience of transcendence or mystery. It can be symbolic of the unknown, unspeakable, yet-undiscovered truths that help to define a community as surely as voiced commitments or grievances do. Silence is not something to fear, avoid, manage, or fill with noise. It is a blessing—part of what just-is—and it ought to be welcomed, with purpose, into our conversations. No shame or apology necessary.

So there you have it: six simple tips for facilitating public conversations that are explicitly designed to bring deeply personal, possibly-controversial opinions to light. Whenever I am privileged to facilitate conversations like these, my deepest hope is that every attendee will be able to head for the exit thinking something like: “I appreciate that I finally had the opportunity to speak from my heart. And I appreciate the opportunity to hear others speak from theirs.” I also hope they will be able to leave the circle saying something like, “Well, no one can accuse that of being an echo chamber!”

All of this might be exhausting, but it is nowhere near exhaustive of all that might yet be done. If you have any ideas, thoughts, concerns, or wisdom that you would like to share on the topic of facilitating hard conversations, please do not hesitate to email me at ccorts@richmond.edu. I would love to hear from you!

Christopher Corts, Contributor

Sarah Beznoska

Leveraging Staff Departments in Professional Identity Implementation Efforts

By: Sarah Dylag Beznoska, Assistant Dean for Student and Career Services,
Cleveland-Marshall College of Law, Cleveland State University

It’s a regular day in the Office of Student and Career Services at Cleveland-Marshall College of Law. My day starts by meeting with a second-year student who is in tears because they did not receive any offers from our recent on-campus interview program. After reminding them that on-campus interviews are a very small segment of the legal market, I ask more questions than I answer: why they applied to the large law firms participating in on-campus interviews? Whether it is consistent with the conversations we had last year? What is their interest, if any, in public service? How they felt during the interviews? And what next steps they might take that are consistent with their strengths and values?

At noon, I moderate a panel discussion of site supervisors from our externship program, who talk about the learning opportunities available through the program. We focus on the skills that students develop on-site and the ways that the opportunities prepare students for employment goals. Throughout the program, I remind students about the deadlines for the program’s application process, noting that I understand they are busy, but I won’t waive the deadlines. If they are having trouble meeting deadlines, which is an essential lawyering skill, they can meet with a member of my team to talk about calendaring and time management.

After the panel, while eating lunch, I review a student’s cover letter for a new law clerk role. Knowing from conversations with the student that they have a lot more relevant experience than the cover letter demonstrates, I pull up their LinkedIn profile and send along some reflective questions to get them thinking about how they can leverage their past experience, even the non-legal experience, to demonstrate to this employer that they can do the work.

In the late afternoon, I meet with several first-year students, who are required to have an initial meeting with my office before the end of the semester. We cover everything from what brought them to law school to what experiences they have enjoyed most during their first semester to what steps they should be thinking about moving forward. We talk about graduation requirements, summer internships, and managing student debt, before I send them away with a Winter Break to-do list to advance their professional development.

As the day ends, I have a conversation with one of our third-year students, who has had a negative experience with a colleague in a student organization. We brainstorm some ways to address the issue, while remaining professional and consistent with their own values as a person. We also talk about taking some time for self-care and connecting with their personal support network to help process some strong emotions about the experience.

I close the day with an email from a recent graduate who has landed their first long-term post-graduate job. I congratulate them on success in what I know has been a long process, and I collect the ABA-required information for employment reporting before heading home.

This work—the day-to-day work I do in Student and Career Services, a combined department we launched in 2019 at Cleveland-Marshall—is built on some of the foundational premises of professional identity foundation. On a good day, I like to say that I help students, from day one, to assess and plan their entire law school experience with the goal of employability—coursework, student organizations and leadership, wellness support networks, externships, work experiences, and career outcomes. I meet students where they are at in their personal and professional development, and I talk with them about everything they are doing at the College of Law. Beyond that, I frequently hear about their personal life challenges, their families, their worries, and their successes. I hear students’ stories, I listen to their reflections on the experiences they are having in law school and the legal market, and I encourage them towards action items that move them along toward becoming the lawyers they want to be.

In other words, although we don’t do it all, we do a lot of professional identity formation in my office. In career services, we ask students to do self-assessment of their skills, strengths, and values during the fall semester of their first year. We offer practice area and industry panel presentations to allow students to explore the legal market. We help students to tell their own employability story through cover letters, resumes, and LinkedIn, in language that would resonate with legal employers. We support students on academic advising matters and the process of finding an experiential learning opportunity to fit their goals.

In student services, our focus is on developing responsible student leaders of our student organizations, empowering students to collaborate with their peers on events and programs, and developing wellness initiatives to create a culture of wellness and to help students embrace wellness as a part of their professional development.

It has been nothing but inspiring to see the professional identity formation (PIF) community embrace all of these things, and more, in developing implementation plans for the ABA’s professional identity standard. Inspiring to join a community of like-minded teachers and student-centered supporters, who are focused on helping students to build meaningful experiences towards successful outcomes. Inspiring to hear the creative ways that faculty engage students in PIF-related exercises and have conversations that don’t fit within the space of Student and Career Services. Inspiring to see institutional collaborations happening to benefit students.

So, when collaborating, don’t forget your staff departments! Engaging your talented staff team is as easy as reaching out to them to learn about their programs and offerings for students. Just ask! Build your PIF implementation plan to include Student and Career Services, to increase your employment outcomes for students, and to leverage all of the resources available in your institutions. I promise that your staff will be happy to hear from you!

If you have any questions or comments about this post, then please feel free to contact me at s.beznoska@csuohio.edu.

Sarah Dylag Beznoska is the Assistant Dean for Student and Career Services at Cleveland-Marshall College of Law at Cleveland State University.

 

Curtis Osceola, Janet Stearns

Celebrating October 10, 2022: Mental Health Day, Indigenous People’s Day, and Professional Identity

By: Janet Stearns, Dean of Students, University of Miami School of Law
Chair, ABA COLAP Law School Committee

World Mental Health Day

October 10 has been declared as World Mental Health Day by the World Health OrganizationThe objective is to “raise awareness of mental health issues around the world and to mobilize efforts in support of mental health.” Just last week, the CDC announced that the suicide rates in the United States increased four percent from 2020 to 2021, showing that the demand for resources and education remains great.

For many years, the ABA Law Student Division and the ABA Commission on Lawyer Assistance Programs have partnered to bring Mental Health Day to our law students nationwide. While initially organized in March, the groups now celebrate October 10 as Law Student Mental Health Awareness. The ABA will partner to feature national programming to bring attention to law student mental health and reduce stigma so that resources are accessed. Many law schools will use Mental Health Day as a linchpin for law school wellness days or wellness weeks. Often, lawyer assistance programs around the country also use this opportunity to visit area law schools or do outreach through social media. I expect that many of the readers of this article are already on the path to organizing programming for the upcoming Mental Health Day. However, an excellent review of the range of opportunities is covered by Jordana Alter Confino in her 2019 article Where Are We on the Path to Law Student Well-Being?: Report on the COLAP Law School Assistance Committee Law School Wellness Survey.

The 2022 Mental Health Day is just around the corner. This year, at the request of the ABA Law Student Division leadership, we have recruited a group of thought leaders on well-being (among them bar leaders, law faculty, COLAP members, and law students) to record short videos sharing messages on well-being. An intensive social media campaign will continue over the next two weeks. In addition, on Friday, October 14, a number of law students, representing diverse initiatives around mental health, well-being, and mindfulness, will convene to discuss a number of topics in law schools and advocate for change. (Please contact the author for additional information if you have students who should be added to this invitation.) We anticipate that many law schools will be hosting their own programming, and encourage all to share your activities using #LawStudentWellBeing.

While this initiative predates the recent revisions to the ABA Standards, this is an opportunity to underscore that the ABA COLAP and Law Student Division advocated jointly for the inclusion of well-being in the Standards for many years. This year, now that ALL law schools must make resources available around well-being under Section 508, we expect that 2022 Mental Health Day will truly be a national event.

Indigenous People’s Day

Monday, October 10 coincides with the holiday now known as Indigenous People’s Day. Some history on this holiday: in 1934, President Franklin Delano Roosevelt first designated October 12 as Columbus Day, commemorating the day when presumably a crew member of the ship lead by Columbus “sighted land.”  Since 1971, this was recognized as a federal holiday, and then moved “officially” to the second Monday in October.

South Dakota was the first state to recognize Indigenous People’s Day in 1990, and since then a number of states have followed. While it is not yet a federal holiday, a movement is growing. In 2021, President Biden was the first U.S. President to issue a proclamation in recognition of Indigenous People’s Day.

On Indigenous Peoples’ Day, our Nation celebrates the invaluable contributions and resilience of Indigenous peoples, recognizes their inherent sovereignty, and commits to honoring the Federal Government’s trust and treaty obligations to Tribal Nations….On Indigenous Peoples’ Day, we honor America’s first inhabitants and the Tribal Nations that continue to thrive today.

Early in the planning for this year’s Mental Health Day, the organizers recognized that the coinciding of the two holidays provided a great opportunity for reflection and awareness. For one, we recognized that some law schools may be closed on Monday, October 10 and that we needed to be flexible with programming that would extend over the entire week. Further, in recruiting thought leaders for this year’s videos, we actively sought voices that would help us highlight the significance of the two overlapping dates. We invite you to pay particular attention to the contributions of Professor Rhonda Magee (University of San Francisco), and Siena Kalina, 3L at Colorado/ Boulder and President of the National Native American Law Students Association.  We are grateful for their contributions.

The Intersection of Mental Health Day and Indigenous People’s Day: Lessons for  Professional Identity Education

The significant changes in the ABA Standards in 2022 have created many opportunities in legal education.  Among these is the opportunity to create new dialogue between the advocates for law student well-being and supporters of education addressing bias, cross-cultural competency, and racism. These two issues are closely intertwined on many levels, and we have a unique opportunity in the upcoming weeks to reflect and message on this.

In 2020, Mental Health Day featured the path-breaking work of Rhonda Magee and her book The Inner Work of Racial Justice: Healing Ourselves and Transforming Our Communities Through Mindfulness. The recording of her presentation is still available on the ABA website. Professor Magee’s powerful work speaks to the role of mindfulness in our own lives and as an integral part of racial justice work.

In recent years, I have also become more attuned to the need for programming that speak directly to some of our students who may feel marginalized in our law schools. I wrote about this in the AALS Student Services Section Newsletter last year, exploring the integration of well-being and anti-racism programming.

As I have been pondering for myself the upcoming holidays, let me suggest a few very concrete but important steps towards well-being for our Native American Law Students:

  • Miami University and other institutions are using land acknowledgements to reframe our understanding of property and show respect for local indigenous peoples. My institution now has such a land acknowledgement on its Consider special messaging that should be shared for Indigenous People’s Day.
  • Read about the National Native American Law Students Association and whether your law school does or should have representation.
  • Reach out to graduates who may be able to teach and share wisdom…with us and with our students. I made such a call last week to a wonderful former student, Curtis Osceola, who now works as Chief of Staff to the Miccosukee Indian Tribe here in
    South Florida. I have asked him to write a short message to be shared with Miami Law next week in recognition of Indigenous People’s Day. You can read his powerful message, which appears at the end of this post.

    Janet Stearns is Dean of Students at the University of Miami School of Law and Chair of the ABA COLAP Law School Committee.

  • Recognize that all of the Mental Health and Well-Being challenges that we are highlighting are playing out in significant ways in the Indigenous community, and often with far fewer resources to support.

The author welcomes hearing from colleagues across the country as we all explore approaches to our commemoration of the dual holidays that will take place October 10, 2022. You can reach me at jstearns@law.miami.edu.

Curtis Osceola’s Reflection Re: Indigenous People’s Day

Columbus Day. I remember when I was a child sitting in an elementary school classroom and being told of the exploits of Columbus. How he traveled the world, explored the Caribbean, discovered America…

I raised my hand, “Miss, Columbus didn’t discover America, my people were here.” The teacher was taken aback. I doubt anyone had ever challenged the lesson plan, “Yes he did, Curtis. Columbus discovered America.” She replied. “No, he didn’t, he was lost and my people were here first.” I was sent to the office for insubordination. I felt humiliated, guilty, and stupid. How could I have been so wrong? Is my entire existence wrong? What can I do to be “right?”

Many Natives have expressed the same defiance to colonial history, but now that defiance has become a movement. The movement to change Columbus Day to Indigenous People’s Day was born out of the rejection of the lie that is the “Discovery” story of Columbus. But why such a strong rejection? America is great after all. We have the blessings of freedom and democracy. We are protected by laws and those who enforce those laws. We have courts and modern notions of substantive and procedural due process. So why fight the history?

Because the lie hurts. Not like a cut with a knife or a bullet through the flesh. It hurts the mind. Take, for instance, a Native child today. How many Natives before them endured racism, oppression, violence? What effect did those experiences have on the mental health of their predecessors? On their brain chemistry? What is the net effect of that experience through their progeny? The generational trauma of war, removal, and extermination have evolved into contemporary mental health issues like schizophrenia, bipolar disorder, depression, and suicide. These are exacerbated by the social ills of poverty, unemployment, disenfranchisement, domestic violence, and constant bereavement.

Take the experience described earlier: Imagine if a young family member told their teacher about the history of their family member told their teacher about the history of their family, of their heritage. Imagine if the teacher said to that child that they were mistaken, that the history they learned from their family, your ancestors, was wrong. Imagine that child being punished for their expression of truth. And think for a moment—if that single incident was foundational for the formation of my personality and identity, then what further effect does the cumulative trauma mentioned earlier have on the mind?

This is a small window into the intersectionality between what is now Indigenous Peoples’ Day and World Mental Health Day. It is serendipitous that this year they both fall on October 10, 2022. Native Americans now celebrate the second Monday of October as one that is representative of their heritage, legacy, and identity. It seems that the healing has begun. Indigenous People have been subjugated and oppressed since the dawn of the New World. You can help make positive change for Indigenous people. It may not be easy, but it’s worth trying.

Curtis Osceola is an alum of Miami School of Law and now works as Chief of Staff to the Miccosukee Indian Tribe in South Florida.

So how can you make a difference? Make it personal. Become aware of the Indigenous people in your community. Ask them about their land, their history, their experiences. Empathize (or even sympathize) with them. We are the real legacy of the land—subject to the original sins of the American experiment. Remember that the experience of Indigenous people is not just a social experience, but a psychological one as well. Be a friend, be an advocate, be insubordinate avant-garde.

Jabeen Adawi

Clinical Pedagogy: Paving the Way for Professional Identity Formation

By: Jabeen Adawi, Clinical Assistant Professor of Law, Director of the Family Law Clinic, University of Pittsburgh School of Law

In response to the American Bar Association (ABA) revised accreditation standard 303(b) requiring schools to provide “substantial opportunities to the students for… (3) the development of a professional identity,” law schools around the country began to remedy a perceived gap in legal education: the formal and intentional development of a cohesive professional identity. Unlike other client-serving professions—such as medicine or social work—law schools are often critiqued as not doing enough to explicitly support the development of a cohesive professional identity for lawyers. Legal education seemed to rely heavily on the existence of the model rules of conduct and one class in legal ethics to ensure that new lawyers understood their fiduciary responsibilities as lawyers. However, all along clinical pedagogy has been equipping clinical programs to move students through identity formation. Below, I’ll explain how at the University of Pittsburgh School of Law, the clinical faculty drew from well-developed tools and teaching approaches to synthesize a clinic-wide foundational orientation for clinic students that directly responds to standard 303(b).

The ABA standard states that professional identity is developed through an “intentional exploration of values, guiding principles, and well-being practices considered foundational to successful legal practice.” In analyzing the new standard, three distinct elements have emerged:

  • Internalizing a deep responsibility and care orientation to others, especially the client,
  • Developing ownership of continuous professional development towards excellence at the major competencies that clients, employers, and the legal system need, and
  • Well-being practices.

The goal of our foundational orientation is to equip students with common skills and perspectives they will refine during their clinical experiences. Since this is our first pre-semester orientation, we are beginning with a half-day program of three sessions followed by a lunch and a small swearing-in ceremony. The skills we focus on meet the three elements of professional identity formation but are not exclusively the only ways we support student growth in our program.

Internalizing Deep Responsibility to Others

The first element promotes the fiduciary responsibilities of lawyers to their clients and society at large. It centers on developing and nurturing a mindset prioritizing a client’s interests above a lawyer’s self-interest. It also orients a law student to the profession’s commitment to pro bono services and developing a justice system that provides equal access and eliminates bias, discrimination, and racism.

To address the first element, our orientation begins with a session on “Understanding Your Responsibility Towards Clients and Society.” Clinic allows students to navigate the demands of real-life legal practice in a setting where clients are facing numerous odds in exercising their legal rights in the current system. However, I find that students need to be grounded in lived experiences of their clients first. For many of my clinical colleagues and me, a poverty simulation is one way to further perspective taking. This simulation will be followed up with discussion questions where students are reflecting upon the choices they were required to make, what circumstances influenced those choices, and what they may have done differently with a changed piece of their identity or additional resource.

The second step in orienting the students towards care of others requires a thoughtful discussion about one’s fiduciary responsibility as counsel. This can begin with a reflective exercise about a student’s own life where they look for experiences being in the care of another or taking care of someone else. These may be life experiences of seeking medical care, customer service, babysitting, caring for a sick relative, being a parent, or a prior career. Reflecting on their own life, a discussion can follow about lawyer’s specific responsibilities and how they relate to the fiduciary responsibility we take on for clients. This discussion will be grounded in the Pennsylvania Rules of Professional Conduct, specifically the preamble. This exercise should set the tone for their identity as lawyers who are in service of others.

I would be remiss if I didn’t acknowledge that a one-time conversation is not sufficient to develop care orientation. After the perspective-taking exercises are introduced in orientation, students will be equipped to revisit these ideas as they move through their clinic work. Typically, clinic students carry lower caseloads than in practice, so it affords them the ability to connect on a deeper level with a client and gain empathy and understanding for a client’s unique lived experience and their actual needs.  During the year, individual supervision conversations can revisit the orientation discussions and further reinforce their care towards others.

By the end of the year, students are well equipped to engage in conversations critically assessing the legal system, identifying shortcomings, and proposing solutions. For example, many clinics end the year with a seminar dedicated to reflecting upon challenges their clients faced in accessing the courts, coupled with a brainstorming session on potential solutions.[1] This allows students to connect what may be frustrating realizations about “justice” to tangible solutions, thus beginning to develop their capacity to effectuate systemic change.

Developing Major Competencies

The second element includes making students aware of major competencies that clients, employers, and the legal system need. These competencies include client-centered relational skills, problem-solving, and good judgment. The goal is not only to make students aware of these competencies, and their importance, but also to internalize ownership of their own development in these areas.

The second session in our orientation introduces the students to one core competency: client-centered lawyering. Through a thoughtful exercise called “the Rich Aunt” students begin to consider how personal values drive human decision making and students begin to reframe the role of a lawyer from just an advocate to also that of a client-centered counselor.[2] This exercise has students consider a hypothetical scenario where they are lined up to receive a substantial inheritance but have to evaluate if they want to settle for a lower amount or go to trial and potentially obtain more. The students evaluate what factors drove them to their decision, and then reflect on how personal the decision was. This is then connected to choices a client may make and the value in respecting the client’s ability to decide.

After orientation, this client-centered perspective is reinforced during deeper seminars on counseling and interviewing skills. In future years, we intend to broaden the pre-semester orientation to also cover these topics so the foundation to these core competencies is uniformly reinforced across the clinical program. Finally, during the semester or year, students will deepen these skills within a clinical methodology that is structured to engage a student in learning the why behind their choices, reflecting upon their choices, and drawing strategies to implement in their legal practice. This is often done in a non-directive supervision model that is designed to maximize their opportunities for developing into a self-reflective practitioner.[3]  This  supervision model is not often available in traditional internship or externship positions.

Establishing Well-Being Practices

The final element of well-being practices goes beyond teaching self-care practices but instead looks at three core needs of the being: “(1) autonomy (to feel in control of one’s own goals and behavior); (2) competence (to feel one has the needed skills, including physical and mental skills to be successful); and (3) relatedness (to experience a sense of belonging or attachment to other people).”[4] Autonomy requires a student to understand their values, be able to express those values, and hence know where they are in control of their goals and behaviors. Hence, developing one’s sense of self as a person becomes foundational to developing the other necessary identities of a lawyer.

The pre-semester orientation will target this element in a third session focused on “maintaining well-being in a live-client setting.” In this session, we will examine the two elements that make up one’s professional quality of life: compassion satisfaction and compassion fatigue. Then, we will introduce a tool called the “Professional Quality of Life Survey” that allows students to self-evaluate the different aspects that affect their quality of life. The Professional Quality of Life Survey is a free tool developed and refined through years of research on what affects a helper’s ability to continue their work. The Center for Victims of Torture owns the tool and provides it free (along with incredible teaching resources) to help anyone working in a helper-oriented profession.

While the results of the survey may be very private, students will not be required to share the results with anyone but can if they choose. I’ve found that the more ways we can provide students a space to discuss boundaries and personal challenges affecting their lawyering, we can assist them in developing skills to navigate issues that are inevitably going to arise in their lives. In private supervision, if a student chooses to share the results of the survey, together we can examine their trends and explore ways to improve their holistic satisfaction. The reality is that no one ever works in a vacuum: our personal lives and experiences come with us to our jobs and influence our work more than we often realize.

Hopefully, like us at Pitt Law, many other schools can utilize the revised ABA standards to bring attention to the strengths of their clinical programs. If anything, there is a wealth of information in clinical pedagogy—it just needs to be tapped.

If you have any questions or comments in response to this post, then please feel free to email at JZA16@pitt.edu.

Jabeen Adawi is Clinical Professor of Law and Director of the Family Law Clinic at the University of Pittsburgh School of Law.

[1] In “Teaching The Clinic Seminar” text by Deborah Epstein, Jane Aiken, and Wallace Mlyniec (three seminal clinical instructors from the Georgetown University Law Center), Chapter 21, “Exploring Justice” offers one thoughtful example of a framework for discussing justice in a clinical seminar. Another example is in Sue Bryant and Jean Koh Peters’ online repository for clinical law teaching materials “Talking about Race”, where they provide tools for facilitating conversations around racial justice.

[2] Deborah Epstein, Jane Aiken, Wallace Mlyniec, Teaching the Clinic Seminar 56 (2014) (describing the “Rich Aunt” exercise).

[3] See David Chavkin, Clinical Methodology in Clinical Legal Education: A Textbook for Law School Clinical Programs 7 (2002); Serge A. Martinez, Why are We Doing This? Cognitive Science and Nondirective Supervision in Clinical Teaching, 26 Kansas Journal of Law & Public Policy 24 (2016) (discussing the non-directive supervision model).

[4] Neil Hamilton, Louis Bilionis, Revised ABA Standards 303(b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 1: Understanding the New Requirements (May 2022).

Megan Bess

A Simple Professional Identity Formation Assignment Ideal for Externship and/or Clinical Courses

By: Megan Bess, Director of the Externship Program and Assistant Professor of Law,
University of Illinois Chicago School of Law

Reflective assignments will be a key tool for law schools as they implement ABA Standard 303’s call for professional identity formation. For the past few years, our school’s externship program has used a simple assignment and associated rubric to encourage students to reflect on the skills and competencies they will need as attorneys. While this was designed for use in our externship seminars, it can be easily adapted for any course with a goal of having students reflect on the responsibilities of an attorney and associated skills and competencies.

I originally created this assignment to get students thinking about the skills and competencies identified in the Institute for the Advancement of the American Legal System Foundations for Practice Study, as well as those outlined by Neil Hamilton in his study of law firm competency models. I present students with these materials at the outset to give them broader context for what they might seek to observe and develop during their externship experience. This assignment can be easily adapted for reflection on other skills and competencies using different resources, including, for example, the Shultz-Zedeck Lawyering Effectiveness Factors or the newer IAALS study on skills and competencies, Thinking Like a Client. The goal is to get students to think about the non-legal skills and competencies essential for lawyering and to reflect on how those skills resonate with them. With the traditional law school focus on analytical skills and “thinking like a lawyer,” students are often surprised to learn that many general professional skills and competencies are highly valued by legal employers. The research behind each of the resources listed above is critical to bringing credibility to the skills and proving their value to students. This assignment is a series of simple questions which ask students to reflect on those skills and competencies. The prompts in this assignment seek to have students identify and explain:

  • Which skills/competencies resonate with them and why;
  • Their reactions to the skills employers value (those that are both surprising and expected);
  • Examples of others who demonstrate skills/competencies in professional settings;
  • A concrete example showing they have mastered at least one skill/competency; and
  • A skill/competency they need to improve or develop.

As the associated rubric indicates, there are no right or wrong answers to these questions. This can be a little disconcerting for law students, who are often accustomed to questions requiring more definitive responses. The rubric focuses on the quality and depth of the reflection. As we discuss the skills and competencies in our externship classes, I always remind students that when grading these answers, it is easy to distinguish between genuine and honest reflection and those that are simply “going through the motions.”

This type of reflection on lawyering skills and competencies can be especially powerful during an externship or clinical experience. Students form their professional identities by internalizing a profession’s values and responsibility to others—a process which occurs most powerfully when students participate in practice settings and see the values and behaviors of members of the profession.[i] As Tim Floyd and Kendall Kerew observed, it is while participating in this type of experiential learning that students really examine their progress in developing the professional identity of a lawyer.

Please feel free to use any part of this assignment or rubric that is useful to you. Like all my assignments and rubrics, these continue to evolve over time. If you have questions, comments, or ideas for improvement, please reach out to me at mbess@uic.edu.

Megan Bess is the Director of the Externship Program and Assistant Professor of Law at the University of Illinois Chicago School of Law.

Need other ideas for reflective prompts to aid in professional identity formation? Check out Neil Hamilton and Jerry Organ’s article that includes 30 questions designed to aid in professional identity formation.

[i] See Yvonne Steinert, Educational Theory and Strategies to Support Professionalism & Professional Identity Formation, in Teaching Medical Professionalism, Richard Cruess et al., Teaching Medical Professionalism 72 (Richard Cruess et al. eds. (2d ed. 2016)); Ann Colby & William M. Sullivan, Formation of Professionalism and Purpose: Perspectives from the Preparation for the Professions Program, 5 U. St. Thomas L.J. 404, 420-21 (2008).