NALP just published the third and final installment of Louis Bilionis and Neil Hamilton’s three-part series on the Standard 303 revisions. Part 1 and Part 2 appeared in the May and June 2022 editions of NALP’s PDQ, respectively.
The last article in the series, which is titled “Revised ABA Standards 303 (b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 3: Cross-Cultural Competency, Equal Access, and the Elimination of Bias, Discrimination, and Racism,” can be read here.
By: Suzanne Harrington-Steppen, Associate Director of Pro Bono Programs and Clinical Professor of Law, Roger Williams University School of Law
Eliza Vorenberg, Director of Pro Bono Programs and Community Partnerships and Clinical Professor of Law, Roger Williams University School of Law
Law school pro bono programs, whether mandatory or voluntary, offer rich opportunities for students to develop their professional identities as lawyers. Roger Williams University School of Law (RWU Law) has a mandatory 50-hour Pro Bono Experiential Learning requirement. The requirement falls under our “public service” learning outcome and reflects our commitment to teaching our law students about the legal profession’s responsibility: (1) to improve access to the legal system and the quality of justice; and (2) to provide pro bono legal service in law practice to those who cannot afford legal services.
For many law students, pro bono experiences are their first opportunity to play the role of lawyer and reflect on what they are seeing in the profession and how it feels to be a part of the profession. About 40% of our first-year law students engage in a pro bono experience before they finish their first year. But, as we know, experience alone isn’t enough to help students integrate and reflect on the values and norms of the profession as they relate to public service. Law schools are uniquely situated to help students develop their professional identities by providing critical context for their pro bono service. Law schools can both teach students how pro bono service is central to the profession and also provide them with space to reflect on and process their pro bono experiences in relation to how they see themselves as future members of the profession.
Setting the Stage: Access to and Quality of Justice
Last year, when introducing our law school’s pro bono requirement and programmatic opportunities to first-year law students, we moved away from the traditional “information session” format to a session focused on educating and encouraging law students to think critically about what it means to be a lawyer and how public service and pro bono fit into their future responsibilities and the profession’s values.
We began our session asking our 1Ls to remember the following critically important questions throughout their law school experience, in and outside of the classroom, and throughout their careers:
Who has access to justice? Who doesn’t? Why or why not?
What is the quality of justice being administered? How do we evaluate the quality of justice being administered in civil versus criminal contexts?
We intentionally decided to start our session with these questions because the Preamble to the Model Rules of Professional Responsibility makes it clear that all lawyers, not just public interest lawyers or lawyers who are self-motivated to give back, have a special responsibility for ensuring access to, and the quality of, justice. Before we can teach law students about Rule 6.1 or the goals and contours of our law school’s pro bono requirement students need to be told explicitly what a lawyer’s role in society is beyond advocating for their clients. We teach our law students that grappling with these questions and then doing something to fix deficiencies in the legal system are a lawyer’s duty as a member of this profession, not some lofty dream. We also provide students with an overview of the justice gap, using the Academy for Arts & Sciences video entitled “The Civil Justice Gap”. We explain that pro bono service, as defined by Rule 6.1, is one way to take ownership of their professional responsibility to improve access to justice and the quality of justice for all but that there are many other ways they should be thinking about their role as lawyers in our society. This subtle shift in how we introduce the topic of pro bono asks law students to critique our justice system—using the access and quality framework—from the beginning of their law school journey, to identify who benefits and who is hurt by our systems of justice, and to be aware of the bias and inequities built into those systems.
Providing a Pause: Space for Reflection
Externship pedagogy, particularly its emphasis on structured reflection, can be very helpful in thinking about how law schools can design and structure their pro bono programs to promote professional identity formation opportunities. Pro bono experiences with reflective components offer meaningful opportunities for students to process and think deeply about what they are seeing, experiencing, and feeling while engaged in pro bono service and to connect it to their personal identities and lived experiences.
At RWU Law, each law student must submit a one-page written reflection in response to specific prompts after they have completed a pro bono experience they plan to use to meet our graduation requirement. In the past, we have provided prompts to students focused on the type of pro bono/public service experience, e.g., a prompt regarding working directly with clients, or for judicial experiences, the student’s observations regarding access to justice in the courts. This year, with the changes to Standard 303 in mind, we revised our pro bono reflection prompts to directly engage law students in a reflection focused on how the law student’s pro bono experience fits into their professional identity development.
In addition to requiring a written reflection, we intentionally funnel our first-year law students into pro bono opportunities that the law school has developed, facilitates, and oversees, e.g., Alternative Spring Break, Street Law, Volunteer Income Tax Assistance (VITA), and an Eviction Help Desk. This allows us to facilitate in-person reflective meetings throughout the experience and provide more structure than simply matching the law student with an external community partner. Many law schools may not have the resources to have faculty or staff facilitating in-person reflective meetings but at a minimum law schools should consider asking for or requiring a written reflection as a way students can intentionally think about their professional development.
Whether voluntary or mandatory, law school pro bono programming is an excellent vehicle for facilitating law students’ professional identity formation consistent with the revisions to ABA Standard 303(b).
Suzanne Harrington-Steppen is the Associate Director of Pro Bono Programs and Clinical Professor of Law at Roger Williams University School of Law.
Eliza Vorenberg is the Director of Pro Bono Programs and Community Partnerships, and is Clinical Professor of Law at Roger Williams University School of Law.
If you have any questions or comments in response to this post, then please feel free to email either or both of us at sharrington-steppen@rwu.edu and evorenberg@rwu.edu.
By: Daisy Hurst Floyd, University Professor of Law and Ethical Formation and former Dean, Mercer University School of Law
I’ve been thinking about the lawyer’s professional identity and legal education’s role in developing that identity for almost two decades. Through it all, I’ve struggled with two questions. First, what do we really mean when we use the term “professional identity? Second, how should our work overlap with lawyers’ identities outside of their professional roles? It seems that we lack a clear, shared definition of professional identity; much of the work on professional identity formation, including my own, has been more about the why and how than the what. In this piece, I offer some thoughts about the what. In two later postings, I will address the why and how.
The two questions above occupied much of my summer as I worked on a forthcoming book about professional identity. My research led me to develop a model that addresses both what we mean when we talk about professional identity and also its overlap with personal identity. This posting describes that model; I welcome your reaction to it.
In our book, THE PATH FROM STUDENT TO LAWYER: THE FORMATION OF PROFESSIONAL IDENTITY, my colleagues Pat Longan, Tim Floyd, and I used the following definition of professional identity: it is a lawyer’s deep sense of self in role, which allows the lawyer to fulfill the public purposes of the profession and live a life of fulfillment and satisfaction. This definition places our work within virtue ethics and claims that identity is a matter of character. It also connects a particular kind of identity with the desired outcomes of ethical action and well-being.
While this definition focuses helpfully on the lawyer in professional role, it lacks full consideration of a person’s deep sense of self outside of that role. After all, a sense of self in role as a lawyer is just one part, albeit a large one, of any lawyer’s overall deep sense of self. All of us inhabit multiple roles in our lives, and a lawyer’s professional identity exists in that broader context. We know that when a lawyer’s identity in other roles is not consistent with their professional identity, the resulting dissonance is likely to result in unethical behavior and a lack of well-being. It is therefore incumbent upon us to help our students situate their evolving professional identities within their overall identities. To do that, we need to be informed by understandings of identity outside of the particular context of professional identity.
During the twentieth century, social scientists addressed a question that had occupied philosophers for centuries: What does it take to lead a good life in which one is a good person (acts ethically) and flourishes (experiences satisfaction and fulfillment)? This is really the same question that we are asking about professional identity: what does it take for a lawyer to lead a good life, one in which the lawyer is effective and ethical and also flourishes?
A synthesis of the literature on virtue ethics, identity, and character reveals three components of a sense of self that will support a good life across multiple roles. These three components can help us understand professional identity. They are: (1) internalization of certain essential core virtues; (2) cultivation of individual strengths and understanding of individual traits; and (3) a purpose that informs actions and provides meaning.
Core virtues
Virtue ethics posits that a person must internalize certain virtues to be a person of good character. Aristotle famously developed a list of such virtues, and that list has been debated and revised since by philosophers, theologians, and social scientists. Christopher Peterson and Martin Seligman, leaders in the field of positive psychology, have identified six essential core virtues, finding “a surprising amount of similarity across cultures and…a historical and cross-cultural convergence” around these virtues. According to them, a person who internalizes these six virtues will be a person of good character and likely to live a life of ethical action and fulfillment. All six are essential; if any is missing, a person will not be a person of good character.
The six core virtues (which they call “the Big Six”) are:
Individual Strengths and Traits
As essential as the core virtues are, however, they are not the total of a person’s identity. Each of us is different from every other person and possesses individual traits, which make up the second component of identity. Some traits are strengths that will support implementation of the core virtues, while other traits may present challenges. Some traits are inherent and even immutable, such as musical talent, shyness, or athletic ability. Others are more malleable, such as messiness, a dislike of confrontation, or a tendency to procrastinate.
Peterson and Seligman have identified twenty-four character strengths, each supportive of a particular core virtue. They include such traits as creativity and open-mindedness (supportive of wisdom): persistence and integrity (courage); love and social intelligence (humanity); humility and self-regulation (temperance); citizenship and leadership (justice); and gratitude and hope (transcendence). Most people can readily identify between three and seven of these strengths as their own, which Peterson and Seligman label “signature strengths.” A signature strength is one that “a person owns, celebrates, and frequently exercises.”
While no one is likely to possess all twenty-four, they have found that a person who possesses at least one strength within each virtue will be a person of good character. No one is likely to possess all, but their research indicates that most people possess at least two within each virtue.
Purpose
The third component of a healthy sense of self is purpose. It builds upon the first two, but it is greater than the sum of the parts. A purpose allows a person to live congruently with the sense of self that has evolved from internalization of the core virtues and the appropriate traits. Without a purpose, one is unlikely to live an ethical life and find fulfillment, even if they possess the core virtues and essential strengths.
Self-determination theory helps us understand the relationship between purpose and identity through its research on motivation. A person is intrinsically motivated when their actions are either inherently enjoyable or help fulfill an important goal in their lives. For example, a person may spend time with friends or exercise because those things are inherently enjoyable. However, they will spend time cleaning trash from the side of the road, not because it is inherently enjoyable but because it fulfills a purpose of caring for the environment. In contrast, a person is extrinsically motivated when acting to please someone else, earn a reward, or avoid something unpleasant, such as guilt, anger, or pain. Everyone experiences both intrinsic and extrinsic motivations, but a person who is primarily motivated by intrinsic motivations is more likely to act ethically and experience fulfillment than one who is motivated primarily by extrinsic motivation. One who is primarily motivated by extrinsic values is likely to experience angst and distress.
Without a guiding purpose, people are more likely to give into pressure to act inconsistently with their identities because they don’t know themselves well enough to act primarily out of intrinsic motivations. Likewise, a person who has not taken the time to develop the foundational virtues may have a desire to resist extrinsic motivations but will find it hard to do so because of failure to internalize the virtues that support such action. For example, without courage, it will be difficult to resist extrinsic motivations even in the face of conflicting intrinsic ones.
Sophie, an entering law student
To illustrate this model of identity, we can imagine Sophie, an entering law student. Sophie describes herself this way: “I am friendly, opinionated, and stubborn. I do my best to be kind to others, but sometimes my stubbornness makes it hard to be patient when I disagree with someone or think they are doing something they shouldn’t. I have a good sense of humor, but sometimes I show that through sarcasm, which can be hurtful when I don’t intend it to be. I care about others, and I feel good when I do things that make life better for others. I am quiet and a bit shy; I like to read and be by myself for at least part of every day, even though I also enjoy being with friends and family. I value honesty and believe that it is important not to compromise my ethical values. I want to be a friend that others can always rely upon. I don’t like conflict and prefer that everyone get along. I am learning to stand up for myself and others when necessary, even when confronting others is uncomfortable, but I want to continue to get better at it because sometimes I let things go that I shouldn’t. I am curious and like to travel to learn about other cultures, but my shyness sometimes prevents me from taking full advantage of being in new situations. I believe that we are all connected in some way and engage in spiritual practices that are important to me. Because I want to improve my community, I was a student government officer and involved in a couple of nonprofit community organizations in college. I am a good athlete and was really successful in high school and college sports. I lack musical ability, but I appreciate good music, love to go to concerts, and have an interest in learning about singer-songwriters and their work. I don’t like animals, and I’ve never wanted a pet. I’ve always liked to be around children and thought about being an elementary school teacher. I want to do good work in the world that is useful to others, but I’m not sure what that will be.”
Sophie’s answer tells us a lot about her. As an introvert, Sophie knows that being in social situations will require that she take some time to be alone to restore her energy; an extrovert will know that too much alone time will be draining and that they need to schedule time for interactions with others. Sophie recognizes that her personality traits of stubbornness and conflict avoidance may present challenges to being the person she wants to be. Because Sophie is curious about the world and likes to travel, she will make different decisions about how to spend her time and money than someone who does not enjoy or value traveling. Because Sophie values spiritual practices, she will schedule time to participate in such practices, just as she spends times in student government or volunteer positions. She will not spend her time or money on pets.
We also see that Sophie inhabits different roles in her life—she is a friend, family member, leader, student, and volunteer. Sophie’s sense of self will affect how she handles each of these roles, and it will allow her to live authentically across multiple roles even as her identity might manifest differently across those roles.
Sophie’s response demonstrates the requisites for a good life. First, she reveals all six of the core virtues: wisdom, courage, justice, transcendence, humanity, and temperance. Second, we see at least nine of the twenty-four essential strengths: curiosity, persistence, integrity, kindness, fairness, appreciation of excellence, humor, self-regulation, and spirituality. Sophie is aware of individual traits that sometimes are not strengths. She dislikes conflict, which might support kindness, but also could prevent honesty or integrity. Her humor can transgress into hurtful sarcasm, and her stubbornness may impede her ability to listen or empathize. Finally, Sophie has articulated a purpose for her life. She wants to do good work and be useful to others, even as she is unsure what form that purpose will take.
Sophie, like most of our students, enters law school with a healthy sense of self that will continue to develop over a lifetime. Our collective task is to help her both cultivate a new professional identity and to integrate that identity with the evolving sense of self that informs the other roles in her life. We want her to internalize the professional virtues, to acquire strengths that support the virtues while being aware of traits that may impede them, and to develop a professional purpose. Importantly, we want Sophie to develop a professional identity that is consistent with her identity across the other roles in her life, avoiding the dissonance that can otherwise occur. To paraphrase Atticus Finch, we want Sophie to be “the same person in town and at home.”
If we apply the three part model of identity across roles to professional identity, we can identify three analogous component parts:
Core virtues of the Profession
Much like Peterson and Seligman’s “Big Six” core virtues, Pat Longan has identified six core virtues of the legal profession. They are:
Each of these six virtues is essential to being a good lawyer, and internalizing each will support ethical action and well-being. Just as with the Big Six core virtues, if any one of these is missing from a lawyer’s identity, that identity will be incomplete. Sophie’s developing professional identity must include exposure to the core virtues of the profession and opportunities to internalize and practice them.
Individual strengths and traits
To live out the six virtues, a lawyer must also develop particular lawyering strengths, and we can turn to numerous sources to discover what strengths are necessary to support a lawyer’s professional identity. cFor example, Educating Tomorrow’s Lawyers’ comprehensive surveys of lawyers identifies over 70 attributes that a lawyer needs upon entry into the profession. Shultz and Zedeck identified a list of 26 lawyering effectiveness factors, and Hamilton and Bilionis synthesize the literature to develop their three-sided model for professional formation. Some of the identified strengths include those traditionally taught in law school, including legal research, legal analysis and judgment, and oral and written communication skills. Others are only now being recognized as essential, such as grit and resilience; teamwork; a growth mindset; commitment to continued excellence; empathy; and listening.
Sophie’s professional identity is fostered as she develops these numerous essential strengths, but she must also be aware of individual traits that might challenge her professional identity. For example, Sophie can be stubborn and unyielding when she thinks she’s right. That can be a strength as a lawyer if channeled into resilience or fortitude, but it will interfere with good lawyering if it impedes listening or empathy. Her tendency to avoid conflict could impede the virtues of fidelity to the client if she is unable to be a sufficient advocate, or impede the virtue of fidelity to the law if she is reluctant to tell her client that something the client wants to do is unethical. Our support of Sophie’s developing professional identity should include helping her cultivate the strengths that support the six virtues, identify those traits that present challenges, and practice overcoming the challenges.
Purpose
Finally, Sophie’s professional identity will include a purpose for her professional life. In law school and beyond, she will discern how her role as lawyer can be used consistently with the core personal and professional virtues and her individual strengths and traits. It may be that Sophie won’t thrive as a litigator even if she has strong advocacy or communication skills because she dislikes conflict and is an introvert. Nor is she likely to be happy devoting her life to animal rights, despite its importance, as she expresses a dislike for animals. Sophie may, however, find great satisfaction in working to strengthen education, eliminate child abuse, or reform juvenile law. Her appreciation of music may allow her to thrive in legal work for artists.
Larry Krieger and Kennon Sheldon have demonstrated the importance of purpose to professional identity. Their research shows that lawyers with the greatest well-being are primarily motivated by intrinsic values and that the extrinsic values of law school, such as grades, class rank, and law review membership do not correlate with well-being. Yet, they have also shown that law school rapidly shifts students from intrinsic to extrinsic motivations. We need to make students aware of the pitfalls that follow from that shift and give them the tools and space to listen for their purpose. Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev. 554 (2015).
Frederick Buechner’s well known definition of vocation as the place where one’s “deep gladness and the world’s deep hunger meet” is affirmed by empirical research. Sophie could be doing great good in the world, but if what she is doing is not aligned with the core personal and professional virtues and her individual strengths and traits, she is unlikely to thrive and is likely to give in to unethical behavior. If, however, Sophie’s professional work aligns with her identity—both as a lawyer and across the other roles in her life—she is more likely to lead a life in which she acts ethically, fulfills the public purposes of the profession, and is fulfilled. That benefits us all.
Conclusion
We all want our students to live lives of ethical action and well-being. By focusing on the “what” of professional identity, we move closer to that goal.
Daisy Floyd is the University Professor of Law and Ethical Formation, and also the former Dean at Mercer University School of Law.
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
This short Holloran Center definition of student professional identity and the formation of a professional identity is the result of a process of inquiry, dialogue within the Center and with others nationally, and reflection since the founding of the Center in 2006. Starting in 2006, the Center focused on synthesizing the core values of the profession from the Preamble to the Model Rules, the three ABA reports and the Conference of Chief Justice Reports on Professionalism, legal scholars’ definitions of professionalism, and our study of how exemplary lawyers defined the core values of the profession.
Providentially, the Carnegie Foundation for the Advancement of Teaching published Educating Clergy, the first of its empirically-based studies of higher education for the professions in 2006, followed by Educating Lawyers in 2007, Educating Engineers in 2009, and Educating Nurses and Educating Physicians, in 2010. The Carnegie studies introduced “professional identity” and “professional formation” as central to each new entrant’s development in higher education for all of the professions including legal education.
By 2012, we thought that “professional identity” and “professional formation” were more useful than “professionalism” because: (1) they incorporated the same core values; (2) they were terms applicable across higher education for the professions which both increased their fundamental importance and meant that we could learn from higher education in the other professions; and (3) they avoided the narrow understanding of many practicing lawyers that “professionalism” was principally focused on respect for others.
Since 2012, the Center has been in a continuous process of further inquiry, dialogue, and reflection to create a short definition of professional identity and professional identity formation that emphasizes both the two most foundational core values of the legal profession (off of which all the other needed capacities and skills needed to practice law build), and also the journey for students to internalize and demonstrate the two foundational core values. Notably, the two foundational values are emphasized in every major faith tradition and nearly all of the major secular philosophies.
We have a consensus among the two co-directors, the associate director, and the three Holloran Center Fellows, and we offer this Holloran Center short definition of both professional identity and professional identity formation to inform your dialogue and reflection on the Standard 303 revisions.
What Is a Law Student’s Professional Identity and What Is Professional Identity Formation? — A Short Introduction
Holloran Center – September 2022
Generally speaking, professional identity is “a representation of self, achieved in stages over time, during which the characteristics, values, and norms of the … profession are internalized, resulting in an individual thinking, acting, and feeling like a … [member of the profession].”
For law students and lawyers more specifically, we can synthesize a succinct definition of professional identity from the Preamble to the Model Rules of Professional Conduct, the four major reports on professionalism from the ABA and the Conference of Chief Justices, and Holloran Center research. For law students and lawyers, professional identity is grounded in two foundational norms and values that law students and lawyers must understand, internalize, and demonstrate:
“Professional identity formation” is a developmental process beginning in law school and extending over a career that “should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.”
Professional identity formation principally involves a process of socialization. The professional-to-be begins as an outsider to the professional community and its ways, values, and norms. Through experiences over time, inside and outside the classroom and the law school, the individual gradually becomes more and more an insider, “moving from a stance of observer on the outside or periphery of the practice through graduated stages toward becoming a skilled participant at the center of the action.”
The process continues throughout one’s career and features “a series of identity transformations that occur primarily during periods of transition” often marked by anxiety, stress, and risk for the developing professional. This process of socialization is a product of the developing lawyer’s social interactions and activities in environments authentic to the legal profession’s culture and enriched by coaching, mentoring, modeling, reflection, and other supportive strategies.
We hope this definition of professional identity and this description of professional identity formation can serve as a useful entry point for a law school’s faculty and staff interested in discussing and reflecting upon professional identity and professional identity formation in the context of the mission of the law school.
Please click below to view the definition with its endnotes.
Defining Professional Identity and Professional Identity Formation
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.
By: Karen Tokarz, Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic, Washington University School of Law
Washington University Law School is striving to address the revised ABA Standards of 303(b) and 303(c) in multiple ways. The law school utilizes a short course on Negotiation, which we have required for 1Ls for over a decade. It is offered each year in August and January. As set forth in the syllabus, one of the four days focuses on professional identity, bias, and cross-cultural competency. This course offers a unique way of introducing 1L students to these issues via education, experiential learning, negotiation partner feedback, and self-reflection.
In addition, all of our upper-class dispute resolution courses explicitly address professional identity, bias, and cross-cultural competency, especially Cross-Cultural Dispute Resolution, which is offered both semesters.
Below are links to the syllabi of the Negotiation course and Cross-Cultural Dispute Resolution, followed by the text of each syllabi.
Cross-Cultural Dispute Resolution Syllabus
Washington University School of Law Required 1L Negotiation Course (1cr.)
Class Schedule, Objectives, Learning Outcomes, and Assignments
All times are approximate
Course Objectives/Learning Outcomes:
Negotiation is the most commonly used form of legal dispute resolution in the United States and around the world. This required course is designed to introduce students to the basics of negotiation through reading, discussion, simulation exercises, and videos. The course focuses on negotiation theory, negotiation skills, lawyer (agent)/client (principal) dynamics, negotiating in teams, and negotiation ethics.
The ability to participate successfully in legal negotiations rests on a combination of five core skills that students will begin to develop in this course: 1) theoretical understanding; 2) interpersonal and intrapersonal awareness; 3) planning; 4) drafting; and 5) reflection. This course provides students with a set of conceptual frameworks and practice experiences that will enhance understanding and skill level in these areas, from the various perspectives of negotiators, advocates, and clients in negotiations.
This introductory course lays the foundation for learning in upper-level negotiation and dispute resolution courses, as well as doctrinal courses. The course introduces issues of leadership, professional identity, bias, cross-cultural competency and cross-cultural humility. The course also helps prepare students for negotiation and dispute resolution issues soon to be added to the multi-state bar exam.
Course Requirements:
In addition to the four required papers, there are other short assignments, including a Negotiation Self-Analysis & Partner Feedback Form following each Students must submit passing papers related to the negotiations by the conclusion of each class to pass the course.
ABA Standard 310:
ABA Standard 310 requires “not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week or the equivalent amount of work over a different amount of time” for each credit hour awarded.” This course is designed to meet this requirement, and each student is expected to spend no less than 42.5 hours of total work per credit hour.
Texts:
Students must read Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition) before beginning the course. Assigned readings in addition to Getting to Yes will be available on the course Canvas page. Students are strongly encouraged to read the additional readings before beginning the course. Each day’s module on Canvas will include assigned readings and relevant handouts and links.
Tuesday August 23: Negotiation Theories, Strategies, and Styles
Class Schedule:
1:00-2:00 Introduction to the Course and Overview of Day
2:00-2:35 First Negotiation Exercise: The Gallery
2:35-2:45 Share Reflections with Other Side
2:45-2:55 Break
2:55-3:30 Analysis of First Exercise
3:30-4:30 Discussion of Getting to Yes and Theories of Negotiation
Assignment: Please read the entirety of Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition). Please come to class prepared to discuss the reading and to pose two comments or questions.
To be eligible for credit for the course, students must submit before the beginning of class via Canvas a Pre-Negotiation Course Profile, along with a written memo of minimum four (4) pages, maximum five (5) pages, that addresses the questions below. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:
Wednesday, August 24: Lawyer (Agent)/Client (Principal) Relationships, Professional Identity, Confidentiality, Negotiation Ethics
Class Schedule:
1:00-2:10 Discussion of Readings and Overview of Day
2:10-2:30 Prepare for Second Negotiation Exercise (with same party)
2:35-2:45 Break
2:45-3:30 Second Negotiation Exercise: Client Interview/Retainer Agreement
3:30-3:40 Share Reflections with Other Side
3:40-4:30 Analysis of Second Exercise
Assignment: Please read the Model Rules of Professional Conduct (focus on the Preamble and Rules 1, 4, and 8); read pp. 95-138 in Art Hinshaw & Jess K. Albert, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics; and read Beyond Words (and complete the short listening test at the end of that article).
Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a completed listening test (located at the end of the Beyond Words article), plus a written memo of minimum three (3) pages, maximum four (4) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:
Thursday, August 25: Bias, Cultural Competence, Cultural Humility
Class Schedule:
1:00-1:40 Discussion of Readings and Overview of Day
1:40-2:00 Prepare for Third Negotiation Exercise (with partner)
2:00-2:40 Third Negotiation Exercise: Sally Soprano
2:40-2:50 Share Reflections
2:50-3:00 Break
3:00-4:00 Analysis of Third Exercise
4:00-4:30 Joint Planning for Fourth Exercise (with same party)
Assignment: Please read Sue Bryant and Jean Koh Peters, Five Habits for Cross-Cultural Lawyering.
Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written memo of minimum two (2) pages, maximum three (3) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:
Friday, August 26: The Art of Persuasion
Class Schedule:
1:00-1:40 Discussion of Video and Overview of Day
1:40-1:50 Prepare for Fourth Exercise (with partner)
1:50-3:00 Fourth Exercise: Multi-Party Negotiation
3:00-3:10 Share Reflections
3:10-3:20 Break
3:20-4:30 Analysis of Fourth Exercise, Concluding Lecture, Next Steps to Improve as a Negotiator
Assignment: Please watch the first 17 minutes of Mr. Rogers and the Power of Persuasion , http://www.youtube.com/watch?y=_DGdDQrXy5U (link also available on Canvas), and read Carmine Gallo, The Art of Persuasion Hasn’t Changed in 2,000 Years, available at www.carminegallo.com/the-art-of-persuasion-hasnt-changed-in-2000-years/ Please come to class prepared to discuss the video and reading, and to pose two comments or questions as to how the art of persuasion is relevant to negotiations and dispute resolution.
To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written negotiation plan of minimum two (2) pages, maximum three (3) pages. Please use 12 pt. Times New Roman font, 1.5 spacing. In your negotiation plan, please include four columns, one each for you and your partner and one each for the other side and her/his partner. Identify what you understand/guesstimate each side wants (substantive and relationship goals/ positions), why (underlying interests), how (optimal negotiation styles), cultural/ethical issues, options for achieving mutual gains as to substantive and relationship goals, information you want to obtain/retain, aspiration points, resistance points (bottom lines), and BATNAs.
Cross-Cultural Dispute Resolution Fall, 2022
Mondays, 9:00 AM – 10:52 AM Anheuser-Busch Hall, Room
Prof. Juan Del Valle juandelvalle@wustl.edu
SYLLABUS
CREDITS: 3.0
COURSE DESCRIPTION
Disputes and dispute resolution frequently involve cross-cultural conflict. Effective dispute resolution methods involve additional elements than those used in intra-culture adjudicatory and amicable dispute resolution processes. Through a harmonic integration of legal, sociological, psychological, and neurological concepts and findings, this course is designed to equip students with valuable tools that will allow them to choose suitable dispute resolution methods and strategies for resolving cross-cultural controversies, and managing legal conflicts involving individuals from diverse cultures and backgrounds, including but not limited to gender, religion, national origin, and race. The course is designed to enhance negotiation and dispute resolution skills by increasing cultural intelligence (CQ) for legal professionals who will be involved in diverse conflict resolution scenarios, whether as attorneys, negotiators, facilitators, or adjudicators. The course includes assigned readings, drafting, and simulations related to cross-cultural dispute resolution.
ABA STANDARD COMPLIANCE
ABA Standard 310 requires “not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week or the equivalent amount of work over a different amount of time” for each credit hour awarded. This course has been designed to meet this requirement, through the inclusion of mandatory readings, free research and assignments that will be explained during the course and a final essay, expecting each student to spend at least two hours of out-of-class time for each one hour of in-class-time per credit hour.
COURSE OBJECTIVES AND LEARNING OUTCOMES
By the end of the semester, students will be able to effectively:
ASSESSMENT AND GRADING
Students are expected to prepare for every class. Participation in class discussions and class exercises, including a final project will be highly graded and will be assigned twenty-five percent (25%) of the final grade. A final, anonymous essay of approximately 6 pages will have a seventy five percent (75%) weight on the grade.
READINGS AND EXERCISES
Students must read and prepare for a discussion of the assigned readings prior to each session and come to class prepared to actively participate in class discussions. Students are encouraged to read any additional material they find useful to complement lectures. The instructors may suggest complementary readings during the course.
ATTENDANCE POLICY
This is a participatory course. Its success depends on everyone’s active participation and preparation for the exercises that are assigned. Students are allowed to miss 2 classes without that absence negatively impacting their grade; provided that, (i) I am notified in advance of your expected absence (preferably at the previous class) and (ii) any materials you are required to turn in are delivered to me before the class you will miss. Failure to provide advanced notice of an absence, turn in any assignments prior to class or missing more than two classes (absent extreme circumstances approved by Elizabeth Walsh, Associate Dean for Student Services) will count as an unexcused absence. We can be notified about expected absences in class or by email. Unexcused absences will negatively impact both the class participation and performance portions of your grade.
SIMULATION EXERCISES & CASE STUDIES
We will have 2-4 exercises in the course of the semester.
For the simulations to be successful and allow you to develop your skills, it is important that they are approached as seriously as you would approach a real-life negotiation. It is also important that you maintain your assigned role, try to maximize the outcome of the party you are assigned and fully prepare for each simulation. Most of all, I want you to enjoy every single session of this course.
LAPTOP POLICY
Laptops may be used during class discussions to take notes and used during simulations if you are instructed to do so. At no time may laptops be used to surf the web or communicate about subjects not related to the class. Cell phones shall NOT be used at any time while class is in session to make calls, take in-coming calls, or text, except during class breaks. Use of laptops, cell phones, or other electronic devices during class at prohibited times is extremely distracting and reflects a lack of respect to your classmates and me and will result in a failing participation grade for that class session.
CLASS PARTICIPATION
Your final grade will be a combination of the following:
Weekly Class Attendance, Class Participation, and Final Project (25%)
Weekly Participation:
Your weekly class participation throughout the semester, as demonstrated through preparation and discussion of the assigned reading materials, active engagement in the simulations, and negotiation planning memos will be worth 25% of your grade.
Final Essay:
75% of your grade.
*Required Course Textbooks
Fisher, R., Ury, W. (2011). Getting to Yes: Reaching Agreements Without Giving In. New York, NY: Penguin Books. ISBN-10: 0143118757; ISBN-13: 978-0143118756.
Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group. ISBN-10: 9781473684829; ISBN-13: 978-1473684829.
Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Continuum. ISBN-10: 1472922972; ISBN-13: 978-1472922977.
*Required Additional Readings
Cairns, D. (2005). Mediating International Commercial Disputes: Differences in U.S. and Euro- pean Approaches. Dispute Resolution Journal. Aug-Oct, 2005; 60, 3. Available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=67718
Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences Between Cultures Still In- fluence International Commercial Arbitration despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Available at https://nsuworks.nova.edu/il- sajournal/vol9/iss1/2/
*Suggested Complementary Readings
Groves, K., Feyerherm, A., Minhua, G. (2015). Examining Cultural Intelligence and Cross-Cul- tural Negotiation Effectiveness. Journal of Management Education, Vol. 39(2) 209-243. Available at www.sagepub.com.
Class Schedule and Assigned Mandatory Readings
Week 1: Basics of Legal Negotiation and Dispute Resolution
Readings: Fisher, R., Ury, W. (2011) Getting to Yes. Chapters I – IV.
Week 2: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Existentialism, Psychological Perceptions in Conflicts, and the Impact of Emotions
Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 1, 2, 3.
Week 3: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Self-Esteem, Values and Polarities, Interpersonal Relationships, and Psychological Impact of Listening.
Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 4, 5, 6.
Week 4: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Assumptions and Biases, Amicable Dispute Resolution, Differing Models of Negotiations and Mediations, Empathy, and Neurology of Conflict Resolution.
Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 7, 8, 9.
Week 5: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Language Differences
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 1.
Week 6: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Cultural Conditioning
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 2.
Week 7, October 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Culture Categorization, Culture Relativism v. Constructivism, and Integration
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 3.
In-Class Activity Links: Video: Richard Evanoff. (2016). How can People from Different Cultures get Along with Each Other? TedX on Youtube.com. Link: https://www.youtube.com/watch?v=osZr7DLxs8A
Week 8: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Time in Cross-Cultural Negotiations
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 4.
Week 9: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Power- less Communication, Power of Paraphrasing and Reframing, and Communication Gaps
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 5.
Week 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Motivation and Trust-Building, and the Low-Trust Syndrome
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 9.
Week 11: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Meeting of the Minds, Relationship-Building, Giving-In as a Strategy to Overcome Low Trust and Ot- her Cross-Cultural Barriers
Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 10.
In-Class Activity Links: Link: Rathi, A. (2015). This Simple Negotiation Tactic Brought 195 Countries to Consensus. Retrieved from https://qz.com/572623/this-simple-negotiation-tactic- brought-195-countries-to-consensus-in-the-paris-climate-talks/.
Week 12: Gender, Race, National Origin, and Religion in Dispute Resolution
Preparation for class: Please research on recent studies regarding the influence of race, gender, and religion in dispute resolution processes. Please be prepared to share your findings in class.
Readings: Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).
Week 13: Cross-Cultural Views of Commercial Dispute Resolution
Readings: Mediating International Commercial Disputes: Differences in U.S. and European Approaches. Dispute Resolution Journal. Aug-Oct 2005; 60, 3.
Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).
Week 14: Giving, transparency, and building trust in Cross-cultural dispute resolution processes.
In-class activity: Final project presentation and discussion.
If you have any questions or comments about the courses, then please feel free to email me at tokarz@wustl.edu.
Karen Tokarz is the Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic at Washington University School of Law in St. Louis.
By: Megan Bess, Director of the Externship Program and Assistant Professor of Law,
University of Illinois Chicago School of Law
Law students experience significant transitions during their legal education that influence their ability to think and act as an attorney. These transitions are marked by intense learning periods in which students develop a new understanding of their profession. So why are transitions important to professional identity formation? Research from other professions, most notably the medical field, shows us that transitions are key to professional identity development and are therefore important milestones for targeting professional identity formation efforts. These transitions represent opportunities for law schools to support students and further their efforts to comply with the new ABA requirement to integrate professional identity formation into legal education.
While there is generally a dearth of studies regarding the major transitions that students experience on their path to becoming attorneys, Professor Neil Hamilton’s research provides some helpful insight into important transitions during 1L year. Hamilton surveyed students at his own law school and found that summer employment (paid or unpaid) after the first year of law school had the biggest impact on their thinking and acting like a lawyer. Thus, summer employment, particularly after the first year of law school, represents an important transition for law students. This is not entirely surprising, as studies of other professions tell us that reactions to real-world settings often represent critical turning points in developing professional identity.
The challenge is for law schools to leverage tools for professional identity formation to help students understand and capitalize on these important real-world legal experiences. As law schools plan for compliance with ABA Standard 303’s new provision requiring “substantial opportunities” for development of professional identity, they would be wise to consider the importance of major transitions to this process. As Professor Louis Bilionis makes clear, experiences important to professional identity, such as summer employment, take place while a student is in law school but fall outside traditional law school oversight. To fully support professional identity formation during summer employment, legal educators must take a broader view of their responsibilities for all formative experiences during law school.
The good news is that legal education is already equipped with pedagogical tools to support student professional identity during transitions that take place while they are working. Externship pedagogy is designed to support the professional identity formation that takes place during real lawyering work. Common externship tools, such as orientation/training, goal setting, reflection, and feedback, aid in the formation of professional identity. Externship programs differ in structure and can be adapted to the needs of individual schools and curricula. Under ABA Standard 304, every externship program must provide students with opportunities to perform legal work, engage in self-evaluation, receive feedback, and be guided in reflection on the experience. This means that no matter the structure of a school’s externship program, many recommended practices for professional identity formation are already in place.
Schools can leverage their existing externship programs to provide professional identity formation opportunities for all students during the significant transition that occurs while working during the summer after 1L year. Each law school can customize a summer support program with a structure and pedagogy to meet their school’s needs. Ideally, these programs would feature some common effective pedagogical tools. For example, providing an orientation or training program before students begin their summer positions could help frame their experiences and facilitate goal setting that takes into account their own strengths and weaknesses. Reflection is critical for professional identity formation—ideally students would have opportunities to reflect periodically on their experiences and then summarily at summer’s conclusion. Students also need feedback and would greatly benefit from school support in interpreting that feedback while engaging in self-reflection on their performance.
Some notable challenges to this approach include whether to offer academic credit, incentivizing student participation, enlisting faculty and staff support, and engaging employers. In a forthcoming article for the Clinical Law Review, I explore these challenges and offer additional suggestions for such a program following 1L year. In this piece, I propose creating a credit-earning course offered during the summer after 1L year to incentivize participation and underscore the seriousness of the professional identity formation process. There are, however, alternatives to this approach and any efforts that schools can take to support students during important transitions such as the summer after 1L year can reap important benefits.
Please contact me at mbess@uic.edu with comments or questions.
Megan Bess is the Director of the Externship Program and Assistant Professor of Law at the University of Illinois Chicago School of Law.
By: Kathryn M. Thompson, Director of Academic Excellence and Teaching Professor,
Roger Williams University School of Law
Interpretation 303-5 states that “[t]he 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.” Any of us who have struggled with our mental health understand that our first instinct is to isolate ourselves when the pangs of anxiety or the darkness of depression rear their heads. While society has come a long way since I first faced my own mental health challenges over twenty years ago, stigma and some shame still attach to these challenges, particularly in legal institutions where traditionally these challenges have been considered weaknesses.
Each year law school staff and faculty have an opportunity to choose what messages to prioritize in our early sessions with our incoming 1L students. I wrote this blog as I prepared for Orientation with our first-year students. We greet our 1Ls each year in mid-August. Their fresh faces, revealing equal amounts of excitement and anxiety, remind me of the vital role law schools play in our students’ well-being. So many opportunities exist at this early moment to fan their excitement and curiosity and to alleviate their anxieties as they enter their first year of law school. Accomplishing this task while also being candid about the demands of law school and its potential impact on their mental health is an important goal for law school faculty and staff each year. Every year I try to balance teaching skills like case briefing and reading with the less obvious but equally necessary concepts of growth mindset and self-care. Law students need both types of information and while I know how to teach someone how to read a case and I have a decent presentation on growth mindset, I have struggled helping my students embrace self-care in law school. I am like most lawyers who never learned about wellness in law school and was forced to do so after I suffered a depressive episode in my mid-30s. It was only then that I worked with a therapist who helped me to understand the importance of “checking in” with myself regularly regarding my own mental health and only then did I become more able to embrace wellness practices. I am still working on embracing them.
Several forces at play in the first year of law school inhibit a student’s willingness and ability to reach out for help. First, the sheer novelty of the legal casebook method of learning and the Socratic method (however modified it may be) creates a challenge to prepare for classes. Add the legalese in many casebooks and the need to learn a whole new foundational vocabulary and students are hard-pressed to manage their time particularly come October when legal writing papers and midterms first hit. The sheer pace of law school can prevent them from being aware of the impact their sleep deprivation or anxiety is having on their studies. And the shame associated with being “the only one” who isn’t thriving does not encourage wellness practices. Again, without awareness of our own mental health status and an intentional reflection on our mental health, students – and lawyers – continue riding the roller-coaster without seeking help in the early stages before crisis hits. Added to the workload is a law student’s concern (and misconception) that seeking counseling for their mental health challenges will lead to character and fitness issues when they seek to practice law. In this environment, helping students to embrace wellness practices requires an intentional effort to message to all students that the law school community values self-care and that wellness is a key component of a balanced life as a lawyer.
While the counseling center in a university (if a school is fortunate to have one), provides the expert counseling, efforts by law school staff and faculty in alliance with the student body can provide the fertile ground in which students embrace wellbeing practices such as meditation, exercise, deep breathing, therapy, and medication. There are steps that law schools can take early on in a students’ career to provide students “permission” and opportunity to incorporate wellness practices into their studies and, thus, their future legal practice. At RWU law over the past two or so years we have instituted some steps to foster our students’ awareness of their own mental health and to normalize pausing and reflecting on one’s own mental health at regular interviews throughout the course of the semester. One of these measures is called Early Alert: Proactive Check-Ins to Prevent Suicide/Violence and Promote Wellness. Through the initiative of Lorraine Lalli, Dean of Student Life and Operations, the law school partnered with Early Alert last year. Early Alert provides regular, confidential opportunities for students to pause and reflect on their wellness in various areas such as Sleep, Academics, Finances, Relationships, etc. Students who opt into the program report on their wellness on a scale of one to ten. A student who reports a score that shows the student is struggling in that area receives resources and a check-in over the next few days. Another measure the school has taken, which is more subtle but equally important is that we have intentionally prioritized wellness with our students early in the semester. During the first week of school, we bring all of our 1Ls together for a session on wellness. During this session we introduce our students to the Director of our Counseling Center who provides an overview of the counseling center’s services and also a brief explanation of the various reasons that students may seek counseling. 2L and 3L students attended that session this year to provide the message that the 1Ls have a network of support within the law school.
This year, Anna Arakelian, the President and founder of the RWU Law Mental Health Club spoke of an upcoming session the club had scheduled in September on Imposter Syndrome with Remmy Stourac, the author of “The Arsenal of Gratitude.” “Whatever you’re feeling, we felt it, too,” Anna told the 1Ls who listened intently to her and to the two Academic Excellence Teaching Fellows, 3L Nellie Large, and 2L Stefanie Fischer who came to connect with the 1Ls that day. All three upper-level students encouraged the 1Ls to use Early Alert and to be honest about how they were feeling. If the alert asked them to rate their sleep on a zero to ten scale and they had a zero, put zero. “At first I would usually put the higher number because I didn’t want to say that I wasn’t doing well, but one day I was honest and the Alert provided me with helpful resources,” Anna told the students. All upper-level students spoke of finding time (whether thirty minutes or a whole day) to take breaks from law school and how important those breaks are to their ability to thrive in law school. Each wished they had paused more often during the 1L year to provide time for maintaining some balance in their lives.
Forging human connections with our students provides opportunity for authenticity and vulnerability. If students feel free to voice their anxieties and their self-doubts, whether with another student, a staff member, or faculty member, students are much more likely to implement wellness practices as a meaningful part of their lives as students and future lawyers. As Anna said to me after the session, “We’re all humans before we become lawyers.”
Please contact me at kthompson@rwu.edu with comments or questions.
Kathryn M. Thompson serves as the Director of Academic Excellence and Teaching Professor at Roger Williams University School of Law in Rhode Island.
Learning by Example: Conversations with Leaders in the Legal Profession that Help Guide Law Students’ Professional Identity Formation
By: Pat Longan, William Augustus Bootle Chair in Professionalism Ethics, Director of the Mercer Center for Legal Ethics and Professionalism, Mercer University School of Law
[Note: This post is adapted from the Foreword to “Inside the Legal Profession – Conversations with Leaders of the Georgia Bench and Bar,” publication forthcoming from Mercer University Press]
All first-year students at Mercer University School of Law take a three-credit course on professional identity. I created the early versions of that course, which began in 2004, and for many years I have taught it with my colleagues Daisy and Tim Floyd. In our course, the students learn that to find success and meaning in the law they need to cultivate a certain kind of professional identity, one that is infused with the traditional values of the profession. The course teaches that lawyers must be competent, faithful to clients, faithful to the law, public-spirited, and civil. It also teaches that lawyers must have the practical wisdom to find the right combination of these virtues for particular situations. To see what we do in that course in detail, take a look at the text we co-wrote, The Formation of Professional Identity: The Path from Student to Lawyer (Routledge Press 2019) and the web page we maintain about it.
Knowing that these are the virtues that lawyers need is important but not enough. Cultivating them is hard work, and there are many obstacles to their implementation in practice. We discovered early in the evolution of the course that we needed to focus not just on the transmission of knowledge but also on motivating the students. We had to show the students the rewards of all that hard work and perseverance. To do that, we needed to bring to them lawyers and judges who are exemplars of the kinds of professionals we are urging them to become.
That need led to the creation of the “Inside the Legal Profession” component of our course. On Monday and Friday mornings over the course of the semester, I interview judges and lawyers with the entire first year class as the audience. I follow the format of the famous “Inside the Actor’s Studio” interviews that James Lipton conducted for many years, and I discuss with each guest his or her life in the law, leaving time at the end for the students to ask questions. The interviews are routinely recorded. More than fifty of the interviews are posted to YouTube, where collectively they have garnered thousands of views. You can find a link to those interviews here. Mercer Law received the 2014 E. Smythe Gambrell Professionalism Award for this project.
Over the years, I have had the privilege of interviewing justices and judges from the federal trial and appellate courts; the Georgia Supreme Court; the Georgia Court of Appeals; various Superior Courts around the state; State Court judges; a Juvenile Court judge; and a Magistrate Court judge. Lawyers from every part of the profession have participated: prosecutors; defense lawyers; big firm, big city litigators and transactional specialists; solo practitioners; divorce and family law attorneys; government lawyers; law professors and administrators; in-house counsel; plaintiffs’ lawyers; insurance defense lawyers; and bar counsel. Our students have heard from members of the profession at every stage of a career, including brand-new graduates who talk about those first months of practice, to young lawyers navigating the partnership track in law firms or struggling to make successes of their own firms, all the way to senior partners and distinguished judges with the perspectives of decades in the profession. The roster of guests has been diverse by gender, race, sexual preference, and ethnicity. At Mercer, we have been honored by the generosity of all the busy and important people who have volunteered their time to help introduce our new students to the many lives in the law from which the students might choose.
This fall, Mercer University Press is publishing the transcripts of eleven of these interviews. It was difficult to choose just a handful of the interviews to include in the book, but the lawyers and judges who appear represent an excellent cross-section of our guests. Five are graduates of Mercer Law School. United States District Judge Louis Sands describes his journey from the time when he was a child and told his mother that he wanted to attend Mercer University – this at a time when no African-American child could do so – through his Mercer education, service as a prosecutor, private practitioner, and Superior Court Judge, to his nomination, confirmation, and service on the federal bench. Angie Coggins talks about what it is like to serve as a public defender, the career choice she made as an intern in Mercer Law School and that she followed for more than thirty years. Tomieka Daniel, who has participated in the series every year since its inception, gives the students a look inside the challenges and rewards of representing clients who need but cannot afford a lawyer for a civil matter and thus turn to her as a legal services attorney. Doc Schneider tells of his serendipitous choice to attend Mercer Law School and how that led to a stellar career at King & Spalding in Atlanta, including working for two other famous Mercer lawyers, former judge and attorney general Griffin Bell and legendary trial lawyer Frank Jones. Lamar Sizemore, Jr., who along with Judge Sands is a member of the famous Mercer Law class of 1974, talks about his three careers, as a highly successful plaintiffs’ lawyer, as a Superior Court judge, and as a mediator. Along the way, he imparts memorable lessons, including what he learned from the late, great Hank O’Neill about how one deals with opposing counsel who mistreat you.
Others who appear in the book have connections to the Mercer Law faculty. Professor Jim Fleissner has taught at Mercer since 1994, and the graduating classes have selected him to receive the teaching award seventeen times; he talks about his earlier career as a federal prosecutor and about how to take advantage of the opportunities that law school affords. Dean Daisy Floyd, now University Professor of Law and Ethical Formation, describes her career trajectory from being an associate at a big law firm through her appointment and service as Dean of the Mercer Law School. Along the way, she had occasion to be a client, and in her interview, she candidly describes the circumstances that led her to need a lawyer and the lessons she learned about lawyering from the experience of being a client. Justice (then Judge) Verda Colvin is an adjunct professor at Mercer; she shares the insight and wisdom of someone who has succeeded in private practice, as a state prosecutor, as a federal prosecutor, and as a judge. Her dedication to excellence, and her courage to be herself as a judge rather than mimic what other judges do, have inspired our students every time she has visited our class.
Two of the interviews in this volume are of lawyers who have no direct connection to Mercer but who nevertheless made the effort to come to Macon and speak with our students. Emmet Bondurant talks about his varied and highly successful career, as a Supreme Court advocate, founder and leader of a highly successful commercial firm in Atlanta, as an attorney for two detainees at Guantanamo Naval Base, and as the pro bono lawyer for a man wrongfully convicted of murder. He describes his motivation for some of his most high-profile pro bono work: “I hate bullies.” Former Chief Justice Harold Melton (now a partner at Troutman Pepper in Atlanta) shared with the class his experiences as the first African-American president of the student body at Auburn University; as a law student at the University of Georgia who placed at “the top of the bottom half of the class;” as a lawyer in the Georgia Attorney General’s office; as counsel to Georgia Governor Sonny Perdue; as a Justice on the Supreme Court of Georgia; and finally as Chief Justice of that Court. He speaks of the importance in his life of the mentorship of a previous Chief Justice, the late Harris Hines.
As part of their development of their professional identities, students need to see and hear from lawyers and judges who have succeeded and found success and meaning in their work. They need to have exemplars, people whose stories inspire them and whose paths they may want to follow. With the help of the people whose interviews appear in the forthcoming book, and the help of the dozens of others who have participated in the “Inside the Legal Profession” project, we have been able to do that at Mercer Law School. If you are interested in doing something similar as part of a professional identity program, or you want to create a professional identity class, then please contact me at longan_p@law.mercer.edu.
Patrick Longan
William Augustus Bootle Chair in Ethics and Professionalism in the Practice of Law, Mercer University School of Law;
Director, Mercer Center for Legal Ethics and Professionalism
By: Aric Short, Professor of Law and Director of the Professionalism & Leadership Program, Texas A&M University School of Law
As law schools welcome students back to campus this fall, a revised accreditation standard goes into force. Under the new Standard 303(b)(3), each law school “shall provide substantial opportunities to students for the development of a professional identity.” As explained in Interpretation 303-5, “[p]rofessional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society.” Exploration of this topic should include the “values, guiding principles, and well-being practices considered foundational to successful legal practice.” Importantly, the ABA recognizes that professional identity formation is a process that takes time, experience, and reflection. As a result, students “should have frequent opportunities for such development each year of law school and in a variety of courses and co-curricular and professional development activities” (emphasis provided).
The ABA has taken a sequenced approach to implementation of this new professional identity formation requirement. In the fall of 2022, all law schools are expected to have initial plans in place to implement Standard 303. By the fall of 2023, schools are required to begin implementing their plans.
Figuring out exactly how to comply with this new ABA standard can be challenging. Embedded in that challenge are various procedural and structural questions. What process will your school use to evaluate existing professional identity formation efforts? Who will be in charge of ensuring compliance? Which law school stakeholders will be involved in that process? Will professional identity formation be introduced during Orientation? If so, how and by whom? Will 1L students take a course on professional identity formation or be required to attend a series of workshops? Or will similar themes be introduced in classes across the 1L curriculum? Similarly, how will each school continue to expose students to professional identity formation themes throughout the remainder of their law school experience—including in experiential courses and in interactions with offices supporting career services and academic support? Beyond these and other mechanical issues, there exist significant questions about content. What exactly does professional identity formation mean to your institution? What are the core themes you want to emphasize and reinforce with your students? And how will those themes be staggered and built upon so that students develop a deeper sense of their own professional identities as they move through law school?
To assist law schools as they work through these and other issues related to Standard 303(b)(3) implementation, the Holloran Center is announcing two new crowdsourced and collaborative resources. You and your school are invited to contribute to these resources and to learn new ideas and approaches to professional identity formation from colleagues across the country. While these resources are related, they have different purposes:
Resource #1: A repository of law school implementation plans for Standard 303(b)(3). This database, in Google Sheets, is intended to capture law schools’ evolving plans to implement Standard 303(b)(3). Each school is requested to share a narrative describing its Standard 303(b)(3) plan, as well as whether that plan is currently in draft or approved form. Schools are encouraged to provide a full description of their plans to help share creative and effective ways to implement this new Standard. This Google Sheet also asks for contact information for the person at each school responsible for Standard 303(b)(3) implementation, as well as anyone else on your staff or faculty who will be taking the lead in any specific professional identity formation efforts (for example, related to academic support, career services, clinics, externships, legal writing, doctrinal courses, etc.). Each school is also encouraged to provide links to any related web-based materials and to submit any other supporting documents through this Dropbox. While anyone with the link to this Google Sheet can review the submitted plans and contact information details, this document should be completed by the person at each school responsible for compliance with Standard 303(b)(3).
Resource #2: A clearinghouse of specific ideas, techniques, strategies, and tools related to professional identity formation. We know that many of you are already doing impactful work in this area, regardless of your title and the capacity in which you engage with students. This database, also in Google Sheets, provides a means to share those great efforts and learn new ideas from other law school faculty and staff across the country. Anyone who is engaged in professional identity formation efforts—big or small—is encouraged to share their ideas, as well as their contact information. This database is organized broadly in tabs across the bottom by the general area of student engagement, including academic support, career services, clinical / experiential classes, doctrinal classes, lawyering skills classes, student organizations, and professional formation courses. Within each tab, contributors are asked to indicate the primary professional identity focus of the exercise, program, or reflection and to include additional information, including the primary contact person for that contribution. We hope this format makes it easy for you to search for techniques and strategies that might be useful for you. In addition to providing a description of the professional identity work you are doing, you are encouraged to submit to this Dropbox any supporting documents that might be helpful for others, including syllabi, course plans, teaching notes, assessment tools, and grading rubrics.
A note on scope: As described above, these two new crowdsourced resources are focused primarily on Standard 303(b)(3), which relates to professional identity formation. The ABA has also implemented a new Standard 303(c), which requires law schools to “provide education to law students on bias, cross-cultural competency, and racism (1) at the start of the program of legal education; and (2) at least once before graduation.” Most of us working in this general space understand that bias, cross-cultural competency, and racism are foundational topics within professional identity formation. As a result, you and your school should feel free to share in the databases above specific implementation plans and strategies related to Standard 303(c). However, our primary focus is Standard 303(b)(3). We also encourage you to visit Buffalo School of Law’s Website on ABA Standard 303(c) for more specific information about efforts across the country to implement Standard 303(c).
We wish you and your law schools the best of luck as you create institutional plans and design specific techniques for implementation. Hopefully the two databases announced above will help you come up with impactful and effective ways to engage in this important work. We encourage you to share your ideas, to borrow from others, and to connect with other faculty and staff exploring professional identity formation.
Aric Short, Professor of Law and Director of the Professionalism & Leadership Program, Texas A&M University School of Law
By Angela F. Schultz, Assistant Dean for Public Service, Marquette Law School
I have been at Marquette Law School for eleven years. Over the years, I have witnessed students become more willing and able to identify and discuss mental health challenges they have faced in their own lives—challenges the students themselves have described as stress, anxiety, depression, and sometimes as trauma. I remember one recent student who lost both parents during their first year of law school. Another student took a leave of absence and was hospitalized for severe anxiety. If you work with law students, you also know some of the challenges facing students’ well-being.
I can think of three recent conversations where students identified their involvement in pro bono service as being among the factors that ultimately aided them on a path towards wellness. These three students’ experiences are not unique. Each year, we evaluate student experience in pro bono clinics. Comments from a recent survey included: “This work reminds me why I came to law school in the first place.” “I was afraid of working one-on-one with a client because I didn’t realize I already had skills that could be helpful.” “I feel connected to the people served in the clinic. These are my people.”
Before I go on, let me acknowledge that pro bono service can come with a dose of fatigue, vicarious trauma, and feeling overwhelmed by the poverty, despair, and inequity in our legal system and in our world. But right now, in this brief blog post, I’m focusing on how serving others can contribute to one’s well-being.
According to Self-Determination Theory (SDT), all human beings require regular experiences of autonomy, competence, and relatedness to thrive and maximize their positive motivation. See Sheldon, Kennon M. and Krieger, Lawrence S., Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test and Extension of Self-Determination Theory (July 2006). Pro bono service opportunities regularly offer all three.
Autonomy: Pro bono service often involves a student making a choice to engage in something of interest to them; to do something they want to do or something they believe in; and the ability to take initiative and be self-directed. At many law schools (though not all), pro bono is a voluntary activity. Students choose whether to get involved in pro bono service and how much service to do. Students often choose what kind of service to perform and may enjoy increased autonomy as they develop skills.
Competence: Pro bono clinics tend to be places where volunteers all get a chance to feel good at what they do, or at least the opportunity to make progress towards becoming good at what they are learning to do. Pro bono clinics are an avenue where students can gain skills. Looking again at the pro bono evaluation I send to students each year, students indicated the following skills were practiced frequently during pro bono service work: listening; the ability to see the world from another’s perspective; client interviewing; time management; communicating legal information in an understandable way to a client; creative problem solving; and legal/procedural issue spotting.
Relatedness: Pro bono service often (if not always) offers students opportunity to relate meaningfully with others. In our pro bono clinics (called, not surprisingly, the Marquette Volunteer Legal Clinics), law students are paired with volunteer attorneys to serve a client seeking civil legal aid. The lawyer/student pair gets to chat with each other and develop relationships. The client served by the lawyer/student pair typically brings a whole range of human experiences to the mix, from frustration and despair to hope and gratitude. The trio of lawyer, student, and client often laugh together, shake their heads in disturbance together, and sometimes experience victory together. For example, one team recently negotiated a $500 settlement during their time together with a creditor suing their client (a mother of three earning $16 per hour) when her cash loan of $250 ballooned quickly to $1,500. By the end of their two-hour shift, when victory had been achieved, the client asked me to take a photo of her with the law student and lawyer. Without a doubt, meaningful relatedness had occurred for everyone involved in that session.
Autonomy, competence, and relatedness are the experiences cited by research that lend to students’ feelings of positive motivation and well-being.
I’d like to suggest one more reason that pro bono involvement may lend to feelings of well-being: perspective.
Perspective: Pro bono service connects students to the community outside of law school. Law school takes up an extraordinary amount of time, energy, and money for months (and sometimes years) before the student even has their first day. Students sometimes live, drink, and breathe all things related to LSAT preparation. Then soon after they live, drink, and breathe all things related to the law school application process. Then the actual law school experience begins which often presents students with the most academically challenging materials they have seen throughout their education. And law school almost always involves a student’s first experience with a mandatory grading curve. Students’ social lives tend to fill quickly with other law students. The overall experience can be insular and leave students questioning their very identity: Who am I now? Who will I be once I graduate from law school?
Pro bono service is a quick and vivid reminder of the vast world outside of all-things-law-school. People seeking pro bono legal services are getting by (sometimes barely) while facing excruciating circumstances. A law students’ LSAT score is not even remotely part of the list of challenges facing a client in the legal clinic preparing to represent themselves in their eviction hearing tomorrow. The C- grade a law student received in civil procedure somehow seems miniscule once they are hearing directly from a survivor of domestic violence seeking a civil protection order.
The student who lost both parents during their first year of law school pointed to their experience in the pro bono clinics as a significant part of their path towards creating a “new normal” for themselves. And the student hospitalized for severe anxiety cited her work with “real people” in the pro bono clinics as part of her own journey towards wellness.
Please contact me at angela.schultz@marquette.edu with comments or questions.
Angela F. Schultz
Assistant Dean for Public Service
Marquette Law School
AALS Section on Pro Bono & Access to Justice, 2022 Chair