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Christopher Corts

How to Make PIF Assessments More Accurate, Bias-Resistant, and Motivational for All Students

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

To be a lawyer is to be a member of a learned profession that society entrusts with the privilege of self-regulation.[1] To fulfill their duties to society, lawyers must be effective lifelong learners. All knowledge workers, but especially lawyers, must be prepared for a career that includes lifelong learning.[2]

If being a lawyer necessarily means being a lifelong learner[3], then teaching law students the skills, values, and competencies they need to learn now to keep learning on their own for the future is an inescapable part of any law school’s educational mission. Within American law schools, one of the most important places where we collectively attend to the burdens and joys of teaching students how to identify and internalize their commitment to lifelong learning as part of their identity has been the recent movement toward education for Professional Identity Formation (PIF).

Neil Hamilton has articulated PIF’s educational mission as including “two foundational norms and values that law students and lawyers must understand, internalize, and demonstrate,” one of which is “a commitment to pro-active continuous professional development toward excellence at all the competencies needed to serve others well in the profession’s work”[4] (emphasis added).

When we embrace this learning objective as part of our PIF instruction, it raises important questions about how we ought to assess students in this work. If your school has adopted a form of assessment that includes grading, I want to suggest three goals that your program ought to adopt as you design assessments for PIF-related skills and competencies.

In a fascinating, content-rich book entitled Grading for Equity: What It Is, Why It Matters, and How It Can Transform Schools and Classrooms,[5] Joe Feldman—a graduate from Stanford, Harvard Graduate School of Education, and NYU Law School[6]—argues any system of grading ought to be accurate, bias-resistance, and motivational for every student-learner.[7]

Feldman suggests that a system of grading that is more accurate would be one that uses “calculations that are mathematically sound, easy to understand, and [able to] correctly describe a student’s level of academic performance.”[8] As applied to law school, this suggests that we need to take care to ensure that our calculations and descriptions of a student’s level of performance is made by reference to a professional standard of competence or excellence for any particular learning outcome that we publish to students and aim to teach.

This focus—on grading students by reference to professional standards of competence or excellence—is what educational literature calls criteria-referenced forms of grading. The biggest obstacle to accuracy thus defined is the law school curve, which eschews criteria-referenced assessment by imposing norm-referenced assessment.[9] Unfortunately, most law schools impose a curve, which means they remain committed by policy to using inaccurate forms of grading!

As a system of grading, a curve is a norm-referenced form of assessment—not a criteria-referenced assessment. By design, a curved grade communicates information about a student’s performance relative to the performance of other students measured in the same group (the norm). When a law student receives their curved grade, they are like a child who visits the pediatrician and gets feedback about the size of their head being, say, 99^th percentile. Does this assessment mean they are healthy or intelligent? It’s impossible to say based on the number. The number is an expression of how the child compares to others within his or her group. It says nothing about how the child measures against standards of health or intelligence.

Being a norm-referenced assessment, a curved law school grade suffers from these same flaws. It is inaccurate in the sense that it cannot directly communicate anything about professional standards of competence and excellence. It is not designed to do that.

But as Feldman shows: the curve is so much worse than just being inaccurate. It is also prone to bias and can be de-motivational to students all along the contours of the curve.

Feldman outlines myriad ways that curving harms students by running afoul of all three of the fundamental values identified in the book. Even so, he suggests some helpful ways that we can work within the curved system to create assessments, including graded inputs, that are more accurate.

For example, Feldman suggests that teachers should:

Resist giving a “zero” as a grade when work has not been submitted. That gives students the option of not doing work! Good, poor, or in-between, a grade given ought to represent a teacher’s judgment about the degree of quality of work submitted, not a judgment about when it was submitted.
Grade minimally. The proper focus ought to be on giving feedback without grades attached. The more we grade, the more students obsess about the grade. We need them to obsess about the quality of their performance relative to professional standards of competence or excellence. That requires feedback.
Use a small grading scale from numbers 0-4. A small grading scale properly conveys the relative degrees of difference that separate levels of achievement along the ways to excellence. All students should expect to pass between those levels on the way to competence and, eventually, excellence. [As an avid tennis player and recent convert to pickleball, I appreciate the way that both sports use a rating system that is small-scale and incremental in the ways Feldman describes. For example: A beginning tennis player (2.5 or 3.0) is distinct from an intermediate (3.5 or 4.0) and more advanced players (4.5, 5.0 +). But the size of the rating scale adopted facilitates a growth mindset; it reinforces the belief that, with sustained attention, effort, and practice, it is possible to move up the rating scale over time.]
Give more weight to more recent performance. A student’s performance early in the semester—before there has been much instruction, practice, or feedback—is predictably poorer for everyone.
Grade based on individual achievement, not an entire group. This has implications for grading team-based assignments, obviously. But it also warrants against using a curve—because the curve reflects individual performance only by reference to the group’s norm, not by reference to professional standards or criteria for competence, excellence, whatever).[10]

So once we have tackled accuracy….how might we ensure our grading is more bias-resistant? When Feldman talks about bias-resistant grading, he means that “grades should be based on valid evidence of a student’s content knowledge, and not based on evidence that is likely to be corrupted by a teacher’s implicit bias or reflect a student’s environment.”[11]

Sounds reasonable. But how might we make grading more bias-resistant in these ways? Feldman gives a few suggestions; I suspect they might be surprising to some of my instructor-readers who likely have used one or more of the disfavored practices Feldman identifies as being prone to bias. Feldman argues we should:

Grade based only upon required content. Among other implications, this means that we ought to resist any temptation to award extra credit.
Make sure the final grade reflects the quality of work submitted, not the timing of when the work was submitted. In other words: resist the urge to give a score that reflects the lateness of the submission more than the quality of work that was submitted.
Do not grade levels of participation or engagement separately. As instructors of future professionals, we need our students to grasp the way that their participation, engagement, and level of effort directly impacts their ability to perform competently and produce professional-level work. If we are right about that, we do not need to grade these inputs separately. If a class is well-designed, it will not be possible for someone to perform well on an assignment if they have not participated or been engaged meaningfully in the class prior to that! To grade engagement or participation separately risks double-counting; it is not necessary.

This last concern may at first sound more like an accuracy problem than a bias-resistance challenge; it risks double-counting poor participation and engagement. But there is also a serious bias problem when professors say they will grade “levels of participation” or “engagement” without clearly defining what “participation” and “engagement” mean. Similarly, a bias problem exists if professors do not adequately disclose how students can achieve that learning objective in a way that meets the professor’s expectations. The bias problem is especially challenging in large doctrinal classes, where students may only be able to speak, participate, or engage with the professor when the professor places them on call or initiates a Socratic dialogue with them about topics of the professor’s choosing.

If “participation” or “engagement” means talking in class, quiet or culturally-deferential students may be especially vulnerable to a professor’s implicit bias in favor of extroverted, alpha-type students who talk a lot, or out of turn. Especially in law school classrooms where professors retain nearly complete control over the decision of who gets to speak when and about what, it makes opportunities to demonstrate “participation” or “engagement” more difficult, particularly if those categories have not been carefully defined, if standards for achievement have not been published, and if students’ opportunities for demonstrating those inputs have not been intentionally monitored for parity.

It is not that engagement and participation do not matter. They do! They matter so much that if students shrug off their duty to participate and be engaged in a course, they will not be able to perform well on the merits. If you are concerned that a student might be able to perform well on an assignment in your course without engaging or meaningfully participating in the course work prior to the assignment….then you have a course design problem. The problem is yours.

Only summative assessments ought to be graded. Formative assessments—such as homework or practice problems—require feedback…but not Formative assessments are especially vulnerable to being distorted by a student’s learning environment outside of the classroom (which Feldman identified as problematic when it comes to bias-resistance).

And what about Feldman’s final value: the value that grading ought to be motivational for all students? When Feldman says we need a system of grading that is more motivational for all students, he means that the way we grade should “motivate students to achieve academic success, support a growth mindset, and give students opportunities for redemption”—even (especially!) when they do not earn one of the best-available grades.[12]

Thus described, how might we make grading more motivational for all students?

Use rubrics and standards scales that are shared with students.
Give opportunities for retakes and re-dos (until the student performs the assigned task at a minimum level of competency).
Give tests without any points (but lots of feedback).
Grade minimally, and use a 0-4 scale when we do grade, so that students can easily see the relationship between their current level of performance and desired level of performance as a gap that can realistically be closed with additional effort. In other words: instead of lecturing or nagging students about having a growth mindset, use a grading scale that makes growth from one category of performance to another appear achievable.
Emphasize self-regulation. The more we can do to help students take responsibility for their own process of growth and learning, the better. This requires more than lecturing or telling them. By devoting precious educational time to self-reflection and meta-cognitive exercises, we can help students make critical connections, learn valuable lessons, and experience themselves as the driving agents who are ultimately responsible for their own education.
Create a community of feedback to support students in their individual journeys of learning, growth, and improvement.
Resist grading soft skills as separate grading inputs (unless the soft skill has been made a topic/subject of the course of instruction, such as when an entire course is devoted to “listening” or “leadership” or “communication” or “soft skills for lawyers”). In other words, if you are a Torts or Contracts professor, resist the urge to grade soft skills as part of that course.

I suspect this last suggestion might be surprising or controversial to some. To be sure, a well-meaning Torts or Contracts professor might wish to reinforce the importance of PIF’s soft-skilled competency in a doctrinal class. That might be a wise decision, but Feldman’s argument suggests that educators who care most about teaching students the soft skills they need to thrive in education and life are most effective when they give plenty of feedback but no separate grade for a soft-skilled performance.[13]

As Feldman describes it, “[w]hen we reestablish the causal relationship between soft skills and academic performance and no longer include soft skills in the grade, we increase students’ intrinsic motivation to develop those soft skills as a direct means to greater academic performance.”[14]

For Feldman, this approach is best because, in the twenty-first century, the most important and valuable soft skill of all is the skill of self-regulation.[15] Self-regulation requires “the active monitoring and regulation of a number of different learning processes: e.g., the setting of, and orientation towards, learning goals; the strategies used to achieve goals; the management of resources; the effort exerted; reactions to external feedback; the products produced.”[16] As Feldman explains it, “[w]e best teach self-regulation not by assigning points for soft skills, but instead by lifting the veil by defining soft skills, reducing biases through rubrics, delegating to students the responsibility to record soft skills and academic performance, and facilitating processes for reflection and goal-setting.”[17]

Feldman’s interest in teaching students how to be self-regulated learners brings us back to where I began this article: focused on our duty to teach lawyers how to be lifelong learners. Feldman’s emphasis on teaching self-regulation pairs perfectly with Hamilton’s articulation of PIF’s core learning objectives.[18] The arguments and ideas in Grading for Equity are much richer, deeper, clearer, and more stimulating than what this short blog post allows. Please read it! And then pass it along to a colleague.

For any willing to see it, please see it: when it comes to raising up the next generation of self-regulating lawyer-learners, we have a moral duty to use (and model) systems of assessment that are accurate, bias-resistant, and motivational. Let’s do it!

Christopher Corts is Professor of Law and Legal Practice at the University of Richmond School of Law.

[1] See Anton Hermann-Chroust, The Rise of the Legal Profession in America Vol. 1, (1^st edition), University of Oklahoma: 1965).

[2] See Peter Drucker, “Post-Capitalist Society” at page 52 (Butterworth-Heinemann 1993) (“In the post-capitalist society it is safe to assume that anyone with any knowledge will have to acquire new knowledge every four or five years, or else become obsolete.”) Drucker later suggests that society needs “a new axiom: ‘The more schooling a person has, the more often he or she will need more schooling.’” He warns that American “doctors, lawyers, engineers, business executives are increasingly expected to go back to school every few years lest they become obsolete…” Id. at 186.

[3] My colleague, Laura Webb, makes this case effectively, using the lens of helping students how to think like teachers. Webb, Laura A., Why Legal Writers Should Think Like Teachers (August 17, 2017). 67 J. Legal Educ. 315 (2017). Available at https://jle.aals.org/home/vol67/iss1/13/.

[4] Neil Hamilton, “Introduction to the Definition of Professional Identity and the Formation of a Professional Identity,” Holloran Center Professional Identity Implementation Blog, available at https://tinyurl.com/mshz724s

[5] Feldman, J. (2019). About the Author. In Grading for equity: What it is, why it matters, and how it can transform schools and classrooms, Thousand Oaks, CA: Corwin, a Sage Publishing Company.

[6] Id. at xiii (“About the Author”).

[7] Id. at p. 27 (“Equitable grading is Accurate, Bias-Resistant, and Motivational for all students.”).

[8] Id. at 228.

[9] For a helpful history of the curve in higher education, a survey of empirically-demonstrated ways the curve impairs and impedes learning, explanations of criteria-referenced forms of grading, and pragmatic suggestions for how to implement better assessments in the classroom, see Jeffrey Schinske, & Kimberly Tanner, Teaching More by Grading Less (or Differently), 13:2 CBE–Life Science Education 159-166, available at https://doi.org/10.1187/cbe.cbe-14-03-0054.

[10] Id. at 228.

[11] Id. at 228.

[12] Id. at 228.

[13] Id. at 205. In Chapter 13, Feldman outlines “Practices that build soft skills without including them in a grade.”

[14] Id. at 224.

[15] Id. at 216.

[16] Id. at 216.

[17] Id. at 224.

[18] Neil Hamilton, “Introduction to the Definition of Professional Identity and the Formation of a Professional Identity,” Holloran Center Professional Identity Implementation Blog, available at https://tinyurl.com/mshz724s.

October 3, 2023 by hami3258

Christopher Corts

Know Yourself, Learn Your Audience: Professional Identity Formation and Audience-Awareness in the 1L Legal Writing Classroom

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

Teaching legal writing to 1Ls provides endless opportunities to help students grow their way through the stage-development process of professional identity formation. As students learn how to write in a way that effectively educates and persuades an audience of lawyers and judges, they learn important information about the particular skills, competencies, attitudes, and values they will need to develop if they are to successfully become the kinds of lawyers that employers want and society needs—the kind of lawyers they hope to be, in other words.

For today’s posting, I want to share a PIF-informed exercise I have developed in my Legal Analysis & Writing class. I will try to present it in a way that invites your own tinkering and innovation.

If you share my conviction that education toward professional identity formation (PIF) ought to be integrated into other subjects being taught in the law school curriculum, this exercise can help you experiment with one way that transparently PIF-focused education can help Fall Semester Legal Analysis & Writing students learn more about two of the primary audiences they will be writing documents for during both semesters of a 1L legal writing course: lawyers and judges.

In the opening weeks of a first-year legal analysis and writing course, legal writing professors have a unique opportunity to seamlessly integrate professional identity formation into their legal writing curriculum. As explained below, professional identity formation instruction can help legal writing professors achieve core goals in the legal writing curriculum. By introducing students to core legal writing concepts, language, and skills that students will need to succeed in the short-term (in the writing course), students will learn invaluable information about the kinds of skills, competencies, attitudes, and values that they will need to thrive as professionals in the long-term, in their hopefully-long careers as lawyers who analyze and write to help clients solve legal problems.

In the paragraphs that follow, I will attempt to briefly share what I have learned about how to integrate core analysis and writing objectives with professional identity formation-relevant content early in the 1L legal writing curriculum. To help facilitate your own experimentation, I will share the following:

(1) learning objectives to share with students;

(2) instructional resources that are useful for completing the unit of instruction;

and

(3) an instructional sequence you can use to execute the published objectives.

An appreciation for learning in context[i] is a core feature of any skills-based class. As professors of legal writing, we are lawyers who teach 1Ls early (and often) in their process of professional identity formation. We are uniquely positioned to introduce our students to two threshold questions from the very start of our writing courses. These two questions are familiar features of any professional communication course:

Who is your audience?

What is your purpose for writing to them?

In the context of the opening weeks of a required 1L writing class, these two critical questions require students to do something nearly impossible for novices to do: imagine what it is like to actually be a lawyer, working in context, with limited (or possibly no) direct observation or experience.

Whatever 1Ls may come to law school knowing about the profession, even when they have practiced law in another country prior to enrolling in an American law school, this fact remains: no 1L has ever yet worked as a lawyer licensed by a jurisdiction in the American legal system.

As instructors, we know that, even as legal interns or summer associates, our students will be expected to complete core lawyering tasks in the same way that veterans of the profession complete them: in the context of a role-based, frequently-adversarial system that is populated by a range of familiar types. Whether our students’ future bosses prove to be some combination of happy, cranky, nurturing, or antagonistic, in the American legal system, all lawyers of every kind must figure out how to thrive in a stressful, unpredictable, ever-changing, perpetually time-deprived, chronically stressed-out, unapologetically-perfectionistic, hyper-achieving culture that defines us as a collective (and as individuals, if we are not intentional and careful). For better or worse.

Several years ago, wanting to give more intentional instruction about the context of lawyering earlier in my legal writing course, I started experimenting with offering a short unit of professional identity formation-style instruction during the first week of the course. I designed it to help legal analysis and writing novices do two foundational things: (1) learn about their audience (lawyers); and (2) learn how to write a simple C-R-A-C.

In the paragraphs that follow, having learned from trial and error, I will share three resources I have developed in order to help you experiment with your own version of this exercise in your legal writing class: (1) learning objectives; (2) instructional resources; and (3) an instructional sequence.

Part 1: Learning Objectives

This exercise uses conventional professional identity formation-related resources in order to achieve five learning objectives that are directly related to success in a legal analysis and writing course. Here is how I articulate the learning objectives for my students.

———————————————————————–

This short unit of instruction is designed to help familiarize you with one of every lawyer’s most frequent audiences: other lawyers. By completing this unit of instruction, you will more fully appreciate the people to whom you will be frequently writing in this course—lawyers and judges. The more you appreciate about them, the more you will understand how you need to learn, grow, and change over the next three years.

Specifically, completing this exercise will help you:

- identify the features that help to demarcate law as a “profession”;
- identify some of the issues related to quality, equity, well-being, and the delivery of legal services that all lawyers are professionally obligated to address as part of our duty to maintain the health and integrity of the profession and society’s system of legal justice;
- identify some of the skills, values, and competencies that data suggests are most relevant to legal practice in America;[ii]
- assess your own proficiency at the skills and competencies that data suggests are most relevant to legal practice in America; and
- use your own self-assessment to practice writing a simple argument in the C-R-A-C form that is familiar to all lawyers, and which helps to distinguish legal arguments as belonging to a particular genre or type.

———————————————————————–

Notice: the final learning objective adds an additional layer of legal writing-specific instruction to the exercise. It helps to more seamlessly embed “professional identify formation”-style content and also justify it for especially literal-minded students who are expecting instruction relevant to Legal Analysis and Writing (or whatever your course may be titled).

In my experience, students embrace the purposeful design of the exercise. They have even enjoyed it; rare is the 1L who does not appreciate an opportunity to start a new educational initiative by thinking about herself! And it helps to teach students that professional identity formation can be easily integrated into a first-year legal analysis and writing course. All students can be assured that they will be learning about the skills most relevant to successful work as a professional by learning two of the skills most relevant to success in this course: (a) knowing your audience; and (b) expressing an argument that adheres to a simple IRAC / CRAC form in an audience-sensitive way.

Part 2. Instructional Resources

To achieve the learning objectives identified above, I draw from several resources:

A. Excerpts from historical, first-person accounts of what it means to “be a lawyer”—especially those written by lawyers from historically-marginalized communities;[iii]

B. Information about the history of the profession,[iv] professionalism, professional oaths, and other legal writing-specific educational content[v] published by state bar associations[vi];

C. The “Profile of the Profession” data[vii] that is published annually by the American Bar Association; and

D. Data about the skills, values, and competencies most relevant to legal practice.[viii]

In endnotes referenced above, I have identified particular texts and resources I have used through the years. But I have tried to describe the four general categories of instruction that I have tried to include. Collectively, these different categories help to capture what it means to be a professional and what it means to be a lawyer, specifically. And what skills, values, and competencies lawyers in America value in themselves and expect of other lawyers, given the particular needs of clients. There are a wealth of resources you can draw from. New resources are being updated and made available all the time. Experimentation is encouraged!

Part 3. The Instructional Sequence

Putting all of this together, the instructional sequence looks something like this:

Preparation for class. Prior to class, I assign foundational homework to prepare students to complete the instructional sequence. The homework is usually some intentionally-curated combination of readings excerpted from suggestions I provided in end notes to Instructional Resources A. and B. in Part 2 above.Because I will be asking the students to write an IRAC / CRAC for the first time, I also assign a brief written introduction to IRAC / CRAC. I use an excerpt from the textbook I have adopted for my course[ix], but many other resources – including short videos published online – are easily accessible and can achieve the same purpose.
In-Class Lecture and Work. During class, I deliver a lecture (with visual illustrations) that briefly introduces students to three topics:
- (i) the most recent “Profile of the Profession” data published annually by the American Bar Association (as described in letter C. in the list of Instructional Resources provided in Part 2 above);
- (ii) scholarship and data related to the professional skills, values, and competencies that are most relevant to legal practice (as described in letter D. in the list of Instructional Resources provided in Part 2 above);
- (iii) the significance IRAC / CRAC in legal analysis and writing.
Homework. After class, I have students complete two exercises, which they finish on their own time as homework following class.
- First, they should complete a brief self-assessment exercise that asks students to rate and justify their proficiency in the skills and competencies covered in the readings and lecture (#1 & #2 above).
- Second, when they have created that self-assessment exercise, they should complete an exercise that asks them to use the simple CRAC form to argue that they will make an effective lawyer based upon their ability to articulate a minimally-competent level of proficiency for three of the lawyer-competencies identified in the self-assessment exercise.For example, a simple C-R-A-C-style paragraph could mirror this form (with each student filling out the bracketed information based upon her assessment):

I believe I will make an effective Lawyer.[x] An effective lawyer is someone who can competently perform three or more skills that data suggests lawyers need for effective practice.[xi] Currently, I am at least minimally competent at doing [list 3 skills[xii] from the self-assessment tool that you can currently perform with at least a minimal level of proficiency].[xiii] For example, [here, in a series of short sentences, list each of the justifications you gave for the proficiency rating you assigned yourself for each of the three competencies you identified in the previous sentence.] In all these ways, since I have demonstrated I am at least minimally competent at doing [list again the three competencies selected above], I believe I will make an effective lawyer.[xiv]

- Third, I collect the self-assessment instruments and the simple C-R-A-C. I do not mark, comment upon, or grade the self-assessment instrument. I do assess and provide detailed feedback – but not a grade – on the simple C-R-A-C paragraph. But when I assess it, I am only commenting on the correct form—whether they effectively wrote each component of the C-R-A-C acronym in that sequence.
- Fourth, much later in the year, during the final class in Spring, I distribute the self-assessment exercise completed in Fall and ask students to read it, reflect on everything that has happened in the 1L year since the start of the Fall semester (when we completed the exercise), and update it. By asking students to complete the exercise again, they are able to make it current with any new experiences that they might have gained during the 1L year. By using this exercise to effectively book-end the 1L year in my course, I am able to help students appreciate the iterative process of self-reflection that will be key to lifelong learning in the profession. (Lifelong learning is a core lawyering skill!) This approach captures the stage-development process that I understand to be a hallmark of the professional identity formation process.

If you have any questions about how to plan or implement this exercise, or if you would like to share with me your own exercises or experiences doing comparable activities in the context of your course, please email me at ccorts@richmond.edu.

Christopher Corts is Professor of Law and Legal Practice at the University of Richmond School of Law.

[i] “There may be better and worse ways to learn to solve problems, but there appears to be no substitute for context. ” Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC. 313, 386-87(1995).

[ii] Whereas instruction designed for “professional identity formation” might emphasize education about professional culture as part of a process of indoctrination and enculturation, in the legal writing classroom, context is important for more discipline-specific reasons: because it can help students learn how to identify, research, analyze, and solve legal problems in order to write or verbally communicate coherent solutions for diverse audiences situated within that professional context. “There may be better and worse ways to learn to solve problems, but there appears to be no substitute for context.” Gary L. Blasi, What Lawyers Know: Lawyering Expertise, Cognitive Science, and the Functions of Theory, 45 J. LEGAL EDUC. 313, 386-87(1995).

[iii] See, e.g., Virginia Drachman, “Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club, 1887 to 1890,” (Ann Arbor, MI: University of Michigan Press, 1993). See also Constance Baker Motley, Equal Justice Under Law, (Farrar, Strauss, and Giroux 1998).

[iv] To give one example: in the past I have used excerpts from Anton Chroust’s two-volume history of the profession, The Rise of the Legal Profession in America (1965). Of course, more contemporary histories are easily available (and probably more easily accessible to readers!) in a shorter form: articles, excerpts from professional responsibility textbooks, etc. My goal is to provide a short excerpt that helps the reader understand what it means to be “a profession” (as opposed to some other career) and what marks “legal professionals” as “professionals” in a sociological sense.

[v] See, e.g., The Supreme Court of Ohio Commission on Professionalism, “Professionalism Do’s and Don’t’s: Legal Writing,” accessible online at https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf.

[vi] To give one compelling example, the state of Ohio publishes a number of professionalism resources that can introduce law students to the values and ideals of the profession—including some specific to legal writing. See, e.g., “Professional Ideals for Ohio Lawyers and Judges,” accessible online at https://www.uakron.edu/law/docs/proIdeals.pdf. See also The Supreme Court of Ohio Commission on Professionalism, “Professionalism Do’s and Don’t’s: Legal Writing,” accessible online at https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf.

[vii] The ABA maintains an interactive website that houses all of the data. See http://www.abalegalprofile.com.

[viii] There are an ever-increasing number of resources you could use to help craft this exercise. In the past, I have found the IAALS “Foundations for Practice” webpage to be a sensible place to start. See https://iaals.du.edu/projects/foundations-practice. To read the original report, see Alli Gerkman and Logan Cornett, “Foundations for Practice: The Whole Lawyer and the Character Quotient” (2016), accessible online at https://iaals.du.edu/publications/foundations-practice-whole-lawyer-and-character-quotient. Allyson Carrel and Cat Moon have innovated an “agile competency model for the modern legal professional” called “Design Your Delta,” accessible online at https://www.designyourdelta.com/about. For a thoughtful, scholarly approach, see also Neil Hamilton, “Empirical Research on the Core Competencies Needed to Practice Law: What Do Clients, Lawyers, New Lawyers, and Legal Employers Tell Us?,” The Bar Examiner 6-16 (September 2014).

[ix] Jill Barton and Rachel Smith, “Handbook for the New Legal Writer,” Aspen Publishing, (2d ed., 2019).

[x] This first sentence is a CONCLUSION.

[xi] This second sentence is a RULE.

[xii] Do not worry about the arbitrariness of this rule selection for now. Later in the course, as we learn more about hierarchies of authority, we will learn how to synthesize binding and persuasive rules that are less arbitrary—and more compelling to our reader—than this crude rule. For now, we just need to pick three competencies so we can create a rule and practice articulating a simple, coherent argument in a recognizable C-R-A-C form our reader will expect.

[xiii] This third sentence provides ANALYSIS of the rule; it applies the three competencies above to your self-assessment. The next sentence provides justification for the way you are here applying the rule; it is part of your ANALYSIS, too, because it helps the reader understand your rationale for concluding that you will make an effective lawyer given the rule (that data suggests the three named competencies are relevant to effective lawyering).

[xiv] This is your final CONCLUSION.

April 13, 2023 by hami3258

Christopher Corts

Seeking Wisdom in the Counsel of Many

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

Today I am writing to offer some practical suggestions for how you can actively, intentionally seek—and find—wisdom in the counsel of many.

I am no expert on this. To be clear: there is nothing in my natural inclinations that would suggest I would ever seek out the wisdom of the many. Left to my own devices, I would be tempted to say: the “wisdom of the many” is not even a thing. I am an introvert…with some misanthropic tendencies. I love “people”— in the abstract. The idea of “humanity” inspires me. I always try to respect “human dignity” as I work my way through life.

But, too often, as soon as I have to deal with real, live, messy human beings in all their glory—like, say, during a faculty meeting—I quickly lose faith in “humanity” and start ruminating on how people around me can’t seem to do much of anything effectively, except make me miserable.

It’s not that I think relying on myself is any better. It is more like: I have more comfort and confidence in my own ability (than others) to survive the many failures and messes I create in the world. To “go it alone” feels pragmatic—doable, if not exactly wise.

Dr. Lisa Feldman Barrett, an expert on the science of human emotion, has described the paradox like this: the best thing for our nervous systems is another person; the worst thing for our nervous systems is…another person.[1] I read that and think: Ok, so maybe just avoid people!

But my better, more reflective, and growth-oriented self is drawn to two maxims found in wisdom literature from the Hebrew Bible. One adage warns that “[w]ithout counsel, plans go wrong, but with many advisors they succeed.”[2] Another maxim, similar to the first, goes like this: “Where there is no guidance, a nation falls, but in an abundance of counselors there is safety.”[3]

These warnings challenge me to move away from solitude and toward the counsel of (not just some select chosen few, but) many others. This requires intention, commitment, and skill. So in today’s post, I want to share with you some of the facilitation techniques I have come to find useful for teaching and modeling a form of public dialogue as part of a larger, more inclusive process of collective decision-making.

File this one away in your “how to lead like a lawyer” files. The techniques shared below are premised upon two value statements:

The best kind of public conversation about a topic of shared concern is one that includes participation from the greatest number of people present.
In a public conversation about a topic of shared concern, the best kind of participation is a statement that accurately represents the speaker’s deepest, truest, most meaningful viewpoint on the matter at issue.

In short? I want everyone speaking, if they wish to speak—and, when they do, speaking courageously—from the heart. Five basic techniques, elaborated in more detail below, can help facilitate a public conversation like that. Here are the five in summary form:

As facilitator, sit in a circle with everyone else.
At the start of the conversation, collaboratively create clear, explicit rules of engagement for speakers and listeners to follow.
At first, use open-ended questions to facilitate a more inclusive conversation.
Once trust is established, have courage to directly invite participants to share their deepest hopes or deepest concerns on the subject.
Throughout the conversation, take care to make public displays of valuing statements of difference and disagreement (and not just statements of unity and consensus).

In the paragraphs that follow, I will give suggestions for how to implement each one of these five techniques for discourse. As may already be obvious: there is a sizing issue here. Every one of these suggestions presumes a kind of public conversation that can be held using one or more small groups (with each group facilitated by at least one facilitator).

I accept that it will not always be possible to go small, but I suggest that you always ought to make every effort to make this kind of small-group interaction possible. Even if practicalities force you to speak in a mass group, at least some of the techniques described below can be implemented or adapted to fit the constraints of that kind of larger public conversation.

As facilitator, sit in a circle with everyone else. In a previous post, I explained why this practice is so important. I won’t repeat myself here, except to remind the reader that a circle is an iconic representation of the values you are seeking to promote and achieve in this conversation. By eliminating (front and back) rows and (literally) de-platforming the speaker, by staging your conversation using a circle, you place speakers and listeners in the same position relative to each other. A circle creates a non-hierarchical, equitable configuration that makes broad, consistent, active participation—as both speakers and listeners—more likely.
Collaboratively create clear, explicit rules of engagement for speakers and A feature of mindful or non-violent communication is to ask each member of the conversation circle to collaboratively establish conversation norms—norms of speaking and listening. This approach is most inclusive and organic to that particular group for that particular conversation on that occasion. As part of the process of building a set of shared norms to which every participant can agree, do not just dictate the norms you want to use without also inviting each participant to share what they need —as a speaker and listener—in order to productively engage in the conversation that is about to occur.To be sure: this takes time. But it is time well spent. It gets people talking. It builds trust and solidarity. It powerfully communicates one of your core values and objectives: you sincerely do want everyone to speak.As facilitator, you can compile the list of norms on a white board, blackboard, piece of paper, etc. That will create a transparent, easily-accessible published record of what everyone agreed to do as speakers/listeners at the very start of the conversation.The following subparts of the second technique provide additional clear, explicit rules for speakers and listeners:

- From the start, get collective buy-in from all participants that speakers will be given freedom to speak and be heard as individuals. Facilitators should take care to explicitly release participants from the burden of speaking for others. For example: in an inter-faith dialogue, an Episcopal clergy should not be heard to speak for all Christians, all Protestants, all Episcopalians, or even all members of her parish! She is a singular individual. She speaks only for herself.This same concept applies to any group that any speaker might be identified with along the lines of race, gender, sexuality, nationality, political identification, whatever. We are a circle of individuals representing only ourselves.To make this even more concrete: you can invite and encourage speakers to use subjective “I” statements whenever possible. “I think, I worry, I see, I hope, I wonder, I feel, It seems to me, etc.” When we describe something we have individually experienced or observed as if it were universal, absolute fact, we threaten to make our one experience the absolute, definitive, only account of that thing—and that can unwittingly erase or de-value the (different) perspectives of others on that same subject.The practice of speaking for one’s self can be especially important in situations where you might want to welcome comments from someone who holds an official title. You want to create space and freedom for them to speak in their capacity as an individual member of the community—not just in an official capacity. (They are of course free to decline to do this! What matters is that you made the effort to make it possible, if they so desired).

- Explicitly keep (and build) a sense of privacy and confidentiality. At the start, before any question is asked: assure participants that whatever is shared in the conversation will be kept confidential. You want to build a circle of trust. Make sure everyone understands that by continuing in the circle and engaging in the conversation, every member is agreeing to keep the conversation amongst ourselves, and to not broadcast any particulars outside of this context. Similarly, assure everyone that the session will not be recorded. Or, if you have an important reason to record, inform everyone that it will be recorded and put them on notice that they might want to say “pass” instead of sharing (since they will also know that they are free to say “pass” at any time).Don’t just assume that everyone consents to a recording, or that gaining consent is not important. It is! Recording can have a chilling effect on conversations. It cuts against the twin purposes (participation and quality) that guide the public conversation we aspire to facilitate.
- Use a talking stick. The beauty of a talking stick is that it comes with rules of discourse attached. And the rules are designed to slow down the conversation—which makes off-the-cuff, emotionally-reactive responses less It creates space, air, and light for deeper and more authentic speaking, listening, and thinking. Rule number 1 is that only the person who is holding the talking stick may speak. When she is done speaking, she either places the talking stick in the center of the circle, or passes it to the left or right. The talking stick prevents cross-talk and interruption. It helps to prevent a debate. It facilitates slowness and reduces the likelihood that someone will blurt out a response in the heat of the moment, before it has been fully thought through. When it comes to selecting the talking stick: don’t be too literal; it does not have to be an actual stick. Make it meaningful! Be creative and use the talking stick convention to help you to convey value and create meaning to your group. For example: when convening a hard, heart-to-heart conversation about well-being with a small group of (struggling, for different reasons and in different ways) 1Ls, I once used an Apple Air-Pods case as the talking stick. When I introduced the convention of using the case as a talking stick with the group, I told them: “The Air Pods case is a symbol of distraction and disconnection in everyday life. But I want us today to re-claim it as an object that can facilitate deeper connection and engagement with each other.” By framing something as banal as the choice of a talking stick as an act of counter-cultural resistance, I helped spark their creative/abstract imagination, played to their counter-cultural inclinations, and helped to create ritualized meaning in what could have just been presented as a mindless everyday object selected for the sake of bland convenience.
- Keep giving clear, explicit procedural guidance about what you expect to happen next with the talking stick. Each time you ask a question and invite everyone to respond, set clear guidelines for how you expect the conversation to proceed. You can start with person X and go clockwise or counter-clockwise from there; you can place the talking stick in the center of the circle and let anyone who wishes to pick up the talking stick do so in whatever order they prefer. But the key here is: no individual can speak a second time until everyone has had a chance to speak. If you elect not to use a talking stick, you can still integrate equitable rules of procedure. Each time you ask a question, you can start with a different person in the circle, and move in a different direction (clockwise, counter-clockwise, whatever). The goal would be to make sure that the same voices are not being heard first or last; you do not just want a diversity of voices being heard—you want them to be heard in a different order.
- Adopt an opt-out rule that liberates everyone to participate at any time simply by saying “pass.” I like to establish this rule at the outset of a conversation. And then, every time I ask a facilitated question and invite each person to speak in response, I remind everyone that they are always free to simply say “pass.” This serves at least four purposes. (1) It ensures that every voice will be heard, even if only to say “pass.” (2) It reinforces how valuable hearing every voice is to the conversation. (3) It minimizes coercive social pressure, so that participants who do not yet feel safe or able to speak candidly and sincerely about the guided prompts are still able to hold attention and bring their voice into the room. And (4) it helps to prevent insincere responses, because people know that “pass” is a credible, respected alternative to saying something simply for the sake of fulfilling a formal participation requirement. (Frequently, at some early point in a conversation that I am facilitating, I will say “pass” myself, to model that it really, truly is ok to just say “pass.”)

At first, facilitate a more inclusive conversation by asking open-ended questions. Embedded in this suggestion is an invitation to practice a radical form of hospitality. As facilitator, you hold power to welcome and bless every person present. Use it! Artful public conversations that include everyone—especially those who are not inclined to speak in public settings, or about certain selected topics—merit light-touch structure. With thoughtful planning and intention, an artful facilitator will pose an open-ended question…and then invite each participant to respond in a way that person prefers. These open-ended questions are especially important at the start of a conversation. They break the proverbial ice. They build comfort, encourage trust, and create a tone and atmosphere for the proceedings. They help to get people comfortable sharing, because they give each person the most freedom to speak to whatever aspect or dynamic of the chosen topic matters most to them. Here is one concrete example of how you might develop a hospitable, open-ended question to elicit deeper engagement that can help build a conversation space: “We gathered today for the purpose of talking about [describe the topic]. To start our conversation together, I want to first give each one of you an opportunity to share what is on your heart or mind as you entered today’s circle of conversation.What have you directly observed or experienced about [the issue]? What do you see with respect to [the issue]? What are your thoughts, feelings, or reactions to what you’re seeing? Whatever you want to share—share it. Good, bad, inspiring, upsetting, ambiguous, whatever; we welcome any comment that accurately captures your point of view, whatever that might be. So long as it respects the dignity of others, we welcome it. We need to hear from everyone so we can more clearly understand what is really going on in our community, what the stakes of this conversation are, and how we can move forward together from here. Every perspective matters, because we all have blind spots. There is no shame in that. Each one of us might be seeing or experiencing something that someone else in this circle needs to see or understand. We cannot arrive at a full, shared version of the truth if we do not have the benefit of every individual perspective. So let’s start helping each other figure this out.
One at a time, as you see fit, please share what is on your heart or mind with respect to [the issue].”

Or, to give a simpler version (without so much wind-up to the pitch):

“For our first round of responses, I welcome each one of you to share anything you wish to share about this topic: [Frame and ask the question].”

As these two examples suggest: whether you want to invest heavily in framing or keep your question short, use the wind-up to explicitly voice the values you wish to nurture. Words matter. Don’t just ask a question…invite and welcome a response. Make it safe for each speaker to share what they most want to say. Don’t just assume everyone will speak…make sure everyone knows you want or need them to speak. Appeal to peoples’ sense of hope and duty. So long as you sincerely want to hear from everyone, say so. The key here is to be authentic, open, and vulnerable.

Any time you ask for everyone to participate, you risk the humiliation of no one listening to what you have to say. That’s ok. Risk it! It is the only way. There is no shame in giving a warm welcome, whatever the response.
Once trust is established, have the courage to directly invite participants to share their deepest hopes or deepest concerns on the subject. Once people get comfortable responding to these broad, open-ended questions, a baseline of trust will be established. From there, if you wish, you can narrow the focus of your questions, make them less open-ended (more targeted to achieve your particular purposes), and invest more in framing the question in a particular way that is designed to elicit the information you (as facilitator and planner) most want and need to hear from the participants. One concrete way to think about crafting a narrower, more focused kind of question is to think about how you can inspire participants to speak in a way that reveals their personal, subjective experience: their perceptions, beliefs, commitments, and values. An artful question inspires a speaker to share something about her unique way of looking at the world, her unique way of valuing the world, the particular way she hopes the world can be made better, and her ideas and intuitions about how to make that more beautiful world possible. Don’t be afraid to play around with crafting questions designed to elicit value statements. On this view, a well-crafted question is one that can help invite a speaker to voice something personally meaningful about what she perceives, believes, desires, values, wants, or fears. Framing the question in terms of “hopes” or “fears” can be a good way to elicit both a statement of fact (about what we want or dread)—and a value (a why to make meaningful our description of what we factually hope for or fear most in the current debate).Here is an example of that kind of question:
What about our law school’s current approach to[Issue X] concerns you most? Why?And then, something like:

As we work out [Issue X], do you see anything in our law school’s community that gives you hope that we can do better and get to where you want us to be? What would “doing better” look like, from your point of view? Why do you feel that would be better than the current state of things?

Crafting questions is an art. Try, fail, try again, fail again, and on and on. The keys to creating questions are to learn what works (and what doesn’t) and keep trying.
Throughout the conversation, take care to make public displays of valuing statements of difference and disagreement (and not just statements of unity and consensus). There is a beautiful human tendency to steer toward unity and consensus as soon as division and disagreement surface—especially when we are in a circle of conversation with colleagues, peers, friends, students we care about. But that caring impulse can choke prophets, silence critics, and chill authentic engagement in the group. The true test of a healthy community is not converting everyone to some bland, watered-down uniformity that enables us to market a fake, superficial unity at the cost of authenticity and truth. It is cringe-inducing and actually damaging when kind-hearted, well-meaning voices try to gaslight us into convincing everyone that, despite perception or appearances, we are not as divided as we seem. We are. It’s probably worse than we imagine. The truth, no matter how unpleasant or difficult, is worth hearing. A healthy community does something brave every time it gathers together, gives voice to disagreement, and collectively stares down the awesome chasms of separation and division that (in part) define it.

So there you have it: five simple, concrete suggestions (with rationalizations and specific examples included) for how you, too, can model and teach a kind of public conversation in small groups that can include the greatest number of voices and elicit the most authentic viewpoints possible. Over time, I have come to sincerely believe that—against my personal preferences—the best counsel really does live in the spaces where the most counselors are (1) given a voice and (2) use it to share their unique point of view.

In that same spirit, I invite you to help me. If you have any ideas, thoughts, concerns, or suggestions that you would like to share on these or related topics: please do! I can’t even hope to be wise without you.

Email me at ccorts@richmond.edu. (Thank you in advance!)

Christopher Corts is Professor of Law and Legal Practice at the University of Richmond School of Law.

[1] https://ideas.ted.com/author/lisa-feldman-barrett/ (“It’s ironic but true: The best thing for your nervous system is another human and the worst thing for your nervous system is another human. Neuroscientist Lisa Feldman Barrett tells us why.”) Feldman Barrett is the author of two books I enthusiastically recommend to legal educators, How Emotions are Made and Seven and a Half Lessons About the Brain.

[2] Proverbs 15:22, New Revised Standard Version.

[3] Proverbs 11:14, New Revised Standard Version.

February 7, 2023 by hami3258

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.

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.
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.
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.
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.]
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.

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

October 11, 2022 by hami3258

Christopher Corts

Better Conversations? Let’s Talk About It

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

Hello, reader! Today I am writing the first of a two-part series that will explore why and how we might facilitate better public conversations, especially when they include controversial topics. In today’s entry, Part I, I will explain why I think new ABA Standards 303(b) and (c) present an opportunity to have some hard but necessary public conversations. I will also share some thoughts on why we should have those conversations, why those conversations can be so difficult, and what we can reasonably expect them to accomplish. (Spoiler alert: not much! Even so, I think they are important for reasons I will explain.)

In a future blog post, Part II, I will give concrete ideas for how to plan and facilitate public conversations in a slower, less reactive, more intentional, inclusive, and meaningful way.

Whenever I facilitate a public conversation, my aim is to try and find a way to facilitate mutual compassion, respect, and trust among participants from the very start. Trust makes broader participation more likely. In my experience, when trust exists, it can also improve the quality of conversation by improving the likelihood that candid, authentic points of view will be voiced—and heard. We should want everyone to leave the conversation thinking something like: “I appreciate the opportunity to finally speak from my heart, and I have appreciated hearing others speak from theirs.” (Why I think this is so important will likely become clearer as you read on.)

Facilitating these kinds of conversations will be especially important as we implement new ABA standard 303(b) & (c). At the risk of understatement: there is nothing close to universal agreement about these standards. Even so, they exist. Now what?

Well…let’s talk about it.

For the unfamiliar: new ABA standard 303(b) mandates that “a law school shall provide substantial opportunities to students for…the development of a professional identity.” New ABA Standard 303(c) specifies that, as part of its curriculum, “a law school shall provide education to law students on bias, cross-cultural competency, and racism.”[i]

Considered together, these two new standards suggest 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 must help students learn how to detect, address, and overcome the pernicious effects of racism and bias [Standard 303(c)] in our own profession.

“We” cannot credibly pretend to hold a unified, consensus point of view on any of this. And if you disagree with me …I invite you to take issue with me which helps to illustrate the point.

Talking about racism and bias introduces language, concepts, and (different) preferred modes of discourse. Educating students about racism and bias from a distance will not do. We desperately need to assume a curious, searching, self-aware, self-critical approach. And as we do: welcome the many different perspectives on what is worthy of criticism in our community.

This might be unpleasant—but it is not unhealthy. A healthy community must learn to live in conversation with itself through serious conflicts, or it cannot exist as a community. We need to model for our students a way of facilitating conversations designed to do that. Especially because we live and work in a dominant culture that indulges in calling-out more than conversation, values casting-out more than confession, and is more eager to cancel—or complain about cancelling—than showing signs of contrition.

We are a roiling mess, you may have noticed.

The American Bar Association’s “Profile of the Profession,” published annually, can help us start the hard conversations that we need to have. Before we get to any discussion of values, politics, perceptions, policies, aspirations, or goals….we need to understand who “we” are, demographically, and work our way out from there. Historically—and in the year 2022, specifically—where, when, and how well have we included (dare we ask: how well have we welcomed?) people of color, women, sexual minorities, people with disabilities, and other historically-excluded-or-marginalized people into all the corners of our profession?

To be sure, the data paints an encouraging picture of progress. Things are better, yes! And still so horrible. The data also paints a sobering, bleak, and utterly pathetic picture of how we continue to struggle to undo the stubbornly pernicious effects of America’s long history of racism, bias, and exclusion. With a shared understanding of the current demographic data (and recent trends) in view, we can move on to voicing the harder, more contestable, and wildly variable personal perceptions, beliefs, experiences, commitments, political convictions, and values that, collectively, are represented among us.

My own experience participating and facilitating hard conversations began over two decades ago, prior to law school, in a different profession. While pursuing a master’s degree in theology, I began to train and engage in ecumenical and inter-religious dialogues about a range of hotly-contested political, theological, and social issues. In recent years, in partnership with the Inner Work Center (formerly known as the Chrysalis Institute, located in my hometown of Richmond, Virginia), I have moderated a series of public conversations involving faith leaders who represent six of the world’s religious traditions, on a range of hot topics related to living, dying, sin, grace, justice, and social transformation. And, like all law professors, I have had many opportunities to either participate in or facilitate hard conversations in and out of the classroom with students, faculty, staff, and alums. (Most recently, these kinds of conversations have tended to recur in my work as a co-facilitator of a spiritual well-being program for first-generation 1Ls, called Just Practice; as co-facilitator of a Law, Race, and Power (LRP) Speaker’s Series; and as co-facilitator of a LRP spin-off program, Let’s Talk About It).

All of these experiences have helped me appreciate the value of a form of conversation that is distinct from arguments or debates. The point of these conversations is to speak with courage, hear with compassion, and be heard without being contradicted. And, by doing that, to simply know ourselves and each other better.

The starting point for these conversations is a mutual agreement to forswear any attempt to try and correct or convert dissenters. All speakers are liberated to voice their point of view without being interrupted, corrected, confronted, contradicted, or condescended-to. It is conversation that permits error, tolerates confusion, extends grace to the mistaken or offensive. It is focused on bringing hidden things to light—the deepest hopes, fears, grievances, and frustrations that too often remain hidden beneath the surface in everyday discourse. It is not a conversation that is burdened by usefulness; it is not designed to fix anything, resolve anything, or identify any commonality or unity. It is conversation that is beautiful and pleasing because it invites everyone present to speak and be heard if they wish, on topics of their choosing.
At their best, these kinds of public airings elucidate the sharp contours of conflict and difference. It’s hard work; many of us prefer conflict-avoidance. Speaking with candor and authenticity takes courage, but hearing those things without reacting or making snap-judgments does, too. To speak and hear things that expose deep differences requires a kind of humility and curiosity, a willingness to risk, and a radical tolerance. The goal is to get it all out—to hear “it” all, whatever “it” may be. And then to just let it be, for now.

In my experience, these kinds of conversations can be hard in two senses. First, they require at least some participants to hear and understand information that is in tension with—or possibly even in direct contradiction to—their perceptions, values, political commitments, religious convictions, or personal experiences. Everyone will likely hear (albeit at different times) stupid, offensive, wrong-headed, poorly-reasoned, outrageous, misguided, flat-wrong things. But this is not a problem; it is the point, really.

And so, hard as it may be…to engage in this conversation requires everyone to buy-in to the premise that it might be difficult to join in this conversation. Public displays of emotion are possible, maybe even likely. And that is ok. And everyone, of course, must be free to exit themselves from the conversation if they wish, whenever they wish.

These kinds of conversations are also “hard” in a second sense—in the way that they can tax the patience and goodwill of everyone participating in them. These kinds of conversation take a lot of time, intention, planning, and discipline. Bluntly: hard conversations do not seem to accomplish much. This can be especially irritating for lawyers, who tend to suffer from acute time deprivation. Most of us have been taught to value efficiency, crave productivity, and adopt a bias toward action. We are valued for our issue-spotting and problem-solving capabilities. It is hard to have a conversation that is not a means to some clear, desirable end.

For me? They can be difficult. But I have learned to appreciate how these conversations give a clearer field of perception, a sharper and more nuanced view of just how diverse, different, disunified, and riddled with conflict, division, and disagreement we really are. And I experience a strange satisfaction when, after the conversation, I can continue to dialogue and converse casually with the participants knowing more about just how radically different we are, in some ways—while enjoying the mystery of how we are able to co-exist with genuine kindness, respect, and civility, just the same.

On that hopeful and buzz-killing note, I will conclude this Part I. Next time, in Part II of this series, I will share concrete suggestions for how you might plan and execute public conversations about difficult topics in a way that is most likely to include the most people and elicit the most candid, forthright, and sincere comments possible—especially the ones that are voiced in criticism or dissent.

Until then…if you have any questions, concerns, or comments you would like to share, please email me! I would love to hear from you. You can reach me at ccorts@richmond.edu.

Christopher Corts, Contributor

[i] For a helpful introduction to these standards, see Neil W. Hamilton and Louis D. Bilionis, “Revised ABA Standards 303(b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 1: Understanding the New Requirements,” PDQ in NALP Bulletin+ (May 2022).

August 26, 2022 by hami3258