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Andrele St. Val, Ann Sinsheimer, Ciara Willett, Omid Fotuhi

Fostering Resilience and Engagement in Law Students

By: Dr. Ann Sinsheimer, Professor of Legal Writing, University of Pittsburgh School of Law
Dr. Omid Fotuhi, Research Psychologist, Learning Research and Development Center, University of Pittsburgh
Andrele St. Val, Assistant Professor of Legal Writing, University of Pittsburgh School of Law
Ciara Willett, Senior Data Scientist, Nielsen

Introduction

For years, scholars have been calling for a change to legal education—to modernize and humanize the system, to make it more inclusive, and to help students maintain balance. Previous efforts within the law community have used a top-down approach to address these concerns, in which interventions and changes are implemented without consulting the students affected by these policies. At the University of Pittsburgh, through the support of researcher partnerships and grants, we have developed a novel approach—listening to and highlighting students’ experiences while implementing a series of targeted, tailored, and well-timed psychological interventions that emphasize their voices and concerns.

First and foremost, our goals are to improve the law school student experience and foster an environment that supports their academic and professional growth. Additionally, we believe that there are potential ancillary effects across the institution (e.g., admissions, student retention, alumni engagement). In the rest of our post, we describe the origins of The Fostering Resilience and Engagement Project, what we have learned thus far, our future directions and goals, and our recommendations for other law schools or professional programs that wish to adopt a similar model.[i]

Origins of The Fostering Resilience and Engagement Project

While teaching Legal Writing to first-year law students, Dr. Sinsheimer began to notice a pattern. In August, the first-year law students are full of enthusiasm. By the end of October, many are full of anxiety and concerned about exams, worried that law school was not the right choice, and unsure whether their grades will be good enough to find a summer job. Some students feel a tremendous pressure that their first-year performance means “everything” to their future as lawyers; other students seem to regard critical feedback as a statement of their ability instead of an opportunity for growth. If the students fail to perform at the level they expect of themselves, they begin to doubt their ability to practice law. By the end of the year, more than a few students are disenchanted with the process of legal education—a common experience throughout U.S. law schools. Troubled by this pattern, Dr. Sinsheimer looked for ways to make her students more resilient and the process more humane.

In 2018, she met Dr. Omid Fotuhi, a research psychologist at the University of Pittsburgh. Dr. Fotuhi was researching psychological interventions designed to help students to adopt “adaptive mindsets”, specifically by studying how students deal with uncertainty around belonging in new circumstances. Having worked primarily with the undergraduate population, Dr. Fotuhi was interested in how graduate and professional school environments might differ. Together, we began our project at Pitt Law. We were also fortunate to recruit others, specifically Professor Andrele St. Val and our Data Scientist Ciara Willett.

Understanding the Problem

Our first step was to understand the law students’ perspectives of their experiences. We began with focus groups and follow-up surveys distributed to students from each year in the law program. Approaching students to discuss and process their experiences was novel for them, and a sort of intervention itself. One student wrote: “I’ll never be able to fully express the impact the anonymous class exercise of sharing our law school concerns had on me. It completely changed my sense of belonging and outlook on law school for the better.”

Several themes emerged from these initial discussions, and we found that many struggles in law school were shared among first-, second-, and third-year students. For example, many students felt that they didn’t measure up to the “right” law student profile, and several discussed facing an atmosphere of hostile competitiveness. However, our students also expressed “pluralistic ignorance” in their responses—an experience similar to imposter syndrome in which someone mistakenly feels that they are the only one struggling.

Many of the responses echoed features or ‘symptoms’ of a “fixed mindset”— believing that one has a fixed amount of intelligence or talent, and that there is no opportunity for change or growth. Researchers have found that a fixed mindset approach to learning can lead to unproductive competition, uncertainty about belonging to a community or institution (e.g., law school), disengagement, discouragement, apathy, and quitting. In contrast, the adoption of a “growth” mindset—believing that one’s abilities can be developed and that everyone can grow and succeed—is associated with resilience, persistence, and greater abilities to adapt to new situations and deal with new challenges.

Early on in this project, considering students’ mindsets within a “growth” or “fixed” framework helped us to identify appropriate interventions and place students’ experiences in context. We have since learned, however, that this binary perspective is too limited to fully capture our students’ experiences, which involve the following: mindsets that relate to belonging or uncertainty around belonging; one’s sense of relevance and meaning; one’s identity and value in the world; and self-management and performance.

Belongingness Intervention

Our next step was to design a belongingness intervention aimed at fostering greater resilience and engagement in our students. Specifically, we sought to target factors that most powerfully impact students’ perceptions about their potential within the Pitt Law program. The most effective interventions address factors that include both internal qualities (e.g., beliefs, attributions) and external qualities (e.g., messages in the environment), especially when those interventions are tailored to a specific group.

We designed the interventions based on what we learned about the Pitt Law student experience and prior studies that have targeted belonging uncertainty in students from underrepresented populations. These interventions were found to influence performance and well-being long after the intervention was delivered. Our research revealed that, while some students did struggle with a fixed mindset about their potential and abilities, these beliefs did not seem to stem from their pre-existing experiences or backgrounds. Rather, students consistently brought up forces within the law school environment that shaped their beliefs about their potential and put their sense of belonging into question. Therefore, we created a customized intervention program that primarily addressed students’ uncertainties about belonging, while also addressing institutional elements that impacted their growth mindset.

Our Design

We intentionally incorporated the intervention into Pitt Law’s two-semester legal writing curriculum because the small class size, frequency of student contact hours, and opportunity for reflection make this course and the professors well suited for this work. We also planned the timing of the interventions to occur at the beginning of the second semester, after students received their first semester grades in law school and when their anxiety levels are high.

Because our study is the first to empirically test the efficacy of a belongingness intervention for law students, we wanted to compare different methods of delivery. Each course section was assigned to one of three conditions: an in-person version (conducted via Zoom during the pandemic) that involved group discussions facilitated by an expert or trained facilitator during class time, an online version that students completed independently, or a control/comparison group.

The in-person intervention involved group discussions led by Dr. Fotuhi and followed a predetermined structure. First, Dr. Fotuhi gave an introduction that normalized common challenges among students. He also emphasized that the law students were the current foremost experts on the law student experience, and that their highly valued insights would be used to help future students during their transition to law school—a sophisticated psychological strategy designed to reduce the defensive disengagement that often comes with serving “helpful” information to students in need. Second, Dr. Fotuhi gradually constructed an environment of disclosure, starting with an icebreaker to help students feel more comfortable sharing. Third, the students wrote down three good and three bad experiences from law school. They were then asked to share more about these experiences and what advice they would give to incoming students. During this elaboration portion, Dr. Fotuhi introduced language that humanized the student experience (e.g., the notion of ‘pluralistic ignorance’) and encouraged students to reframe their viewpoints from a different perspective. For example, in one session, a few students talked about how their own unique training and prior experiences did not align with what a typical or ideal Pitt Law student might look like. Rather quickly, nearly all the students shared having had the same experience, which led to the realization that there is no one “right” profile for the typical Pitt law student. With this gained insight, the entire class seemed to have a collective sigh of relief as they realized that their uniqueness was actually a point of commonality with their peers.

The main difference in the online intervention is that students completed the exercise individually; however, we still wanted to emphasize the shared nature of experiences in law school while asking students to reflect on their own experiences. To this end, students read a set of anonymous responses from our initial focus groups and surveys, which described other law students’ experiences and struggles. Then, the students were asked to write a paragraph that reflected on their own experiences in law school.

Our Findings (Thus Far) & Future Directions

We evaluated the impact of the belongingness intervention and compared the two different methods of implementation (in-person versus online) with surveys distributed to law students at three time points in their first year: a baseline survey during orientation (August); a post-intervention survey at the start of their second semester (January); and a final follow-up survey at the end of the second semester (April). So far, we have analyzed the results of our interventions with three first-year cohorts (2019, 2020, and 2021) and are currently analyzing our 2022 cohort data.

In the baseline and post-intervention surveys, we asked students to talk about their experiences during the transition to law school. Students voiced concerns about time management, whether they would be able to keep up with the workload, (e.g., “making the adjustment to having constant work and stress”), and the competitive environment (e.g., “Law school is a game of who can do the most work without burning out”). Another common theme was feeling inferior to other students, which sometimes held them back in classes (e.g., “My constant worry is thinking I don’t compare to those who are here and how their experiences are better than mine. I am worried to raise my hand in class, afraid that I may say something dumb and be judged for it or will be forever labeled as ‘that girl’”).

A main goal of our belongingness intervention was to provide support to students during a critical period of law school—when they receive their first semester grades. The strong majority of students reported that they benefited from hearing other students’ stories and found similarities with their own experiences (e.g., “It showed that everyone faces difficulties at first. A lot of people said that with time, it gets better. This seems to be a generalized experience and is reassuring.”).

Despite qualitative reports that the intervention was impactful, it was difficult to identify stable effects of the intervention across the three cohorts using our quantitative measures. One potential reason for this is because the three cohorts had vastly different experiences due to the COVID-19 pandemic. Second, our measures may not have adequately probed the success of the interventions. Throughout this process, we have found that it is difficult to identify measures that capture the success of these interventions. Typically, mindset interventions result in subtle but meaningful changes in attitude over time, which may not be fully captured by quantitative measures in a survey. Additionally, retention rates at Pitt Law are generally high (with or without our interventions), so something like retention cannot be used as an effective measure of success. We also continuously modified our surveys in response to what we learned from students’ experiences, and the unique situations that our students were facing (e.g., changes to the grading curve at Pitt Law; the COVID-19 pandemic). These changes came at the cost of being able to track students’ responses to specific questions over time.

When collapsing the quantitative data across the three interventions, we found that self-reports of mental and physical health were quite low at the beginning of the second semester (around the time of the interventions, when students are getting their first semester grades), and further declined by the end of the second semester. These trends are quite concerning and validate the need to find interventions that successfully support students throughout law school. For the 2020 cohort, who faced the additional challenges of COVID-19 and online learning, we found that their beliefs about their ability to handle future challenges—an integral part of law school—declined throughout the second semester.

Despite the decline in mental and physical health that students self-reported, as the year progressed, our mindset survey data showed that students more strongly adopted a growth mindset (e.g., “​​You can grow your basic intelligence a lot in your lifetime”). This was a key goal of our belongingness intervention, and we were somewhat surprised to find that the control group also showed an increased growth mindset throughout their first year. Furthermore, although student’s individual growth mindset improved, their beliefs about the institution’s growth mindset worsened throughout the year; even if changes happen at the individual level, an institutional fixed mindset could impede progress.

Future Directions

Based on our conversations with law students and the results of our research, we remain convinced there is an extant need for change. It remains unclear whether our belongingness intervention is the ideal method. As previously discussed, one of our concerns is that our measures do not fully capture the success of our interventions. In the past year, using what we have learned from the first three rounds of data collection, we conducted a final test of our belongingness intervention. In this test, we changed the timing of our approach by implementing the intervention earlier in the first semester. Previously, we implemented the intervention during a period of great stress for students, when they were about to get their first semester grades; we are excited to learn whether adjusting the timing to occur earlier in the year—so that students have more time to adopt a growth mindset—has any impact. We do not expect to find that our intervention can solve all problems for all students—we may need to make considerable modifications (like continued interventions for the second- and third-year students) or adopt a new type of mindset intervention entirely.

Aside from an intervention for 1L students, we are actively engaged in facilitating other changes that can support students throughout their law school experience. We have recorded open-ended conversations with multiple Pitt Law students (2Ls, 3Ls, and recent graduates) about challenges they experienced in law school and how they overcame them. These conversations provided students with an opportunity to reflect upon their transition to law school and frame their experiences in terms of success. We plan to use these recordings to encourage student resilience—either distributed as part of a course curriculum or brief clips that are distributed at significant times throughout the school year (e.g., orientation, when students receive grades, when students are in the process of applying for summer positions). We have also begun conducting more interviews with faculty to convey that they should be first and foremost concerned with supporting students.

There must also be change at the institution level. Last year, we worked with 2L and 3L students to analyze students’ perspectives about the grading curve. A strong majority (74%) of students were in support of abolishing the mandatory curve—many students reported that the imposed curve had negative effects on their mental health and motivation, and that it contributed to a culture of hostile competitiveness. The administration, when made aware of the students’ perspective, brought the students’ concerns to the faculty, who subsequently replaced the mandatory curve with a more equitable grading policy based on a suggested mean. In our most recent survey, we found that among 1L students, support for abolishing the curve was negatively correlated with feeling a sense of belonging within the law school community and beliefs about one’s ability to handle future challenges and keep up with work demands. Not only do these findings echo our concerns about how institutions themselves can influence students’ mindsets, but we also found that students with a stronger individual growth mindset were more in favor of abolishing the curve.

This year, we received a grant to begin expanding our work with faculty. We recently conducted our first workshop with Pitt Law faculty in which we introduced the concept of belonging, growth mindsets, and how to make changes in the classroom to create an environment that fosters a sense of belonging, resilience, and engagement.

Recommendations & Final Conclusions

Over the past few years, we have learned an incredible amount from simply asking students about the challenges and struggles that they face in law school. Our hope is that other law schools and professional programs start to adopt similar programs and initiatives in their own spaces. Asking students about their experiences—instead of guessing—will reveal unexpected concerns and opportunities for growth within a program.

We encourage any interested institutions to reach out to us—we are happy to share what we have learned and are eager to collaborate with other schools. Given the novelty of this work, establishing a consortium or collective of interested programs will be instrumental in sharing resources and findings. As more schools join our efforts, our knowledge about effective interventions and policies will continue to grow. Furthermore, conducting research in professional programs is inherently difficult because of limited sample sizes; coordinating our efforts and sharing data will improve our efforts to understand and improve the graduate student experience.

More generally, we hope that this work encourages a student-focused approach to improving their experiences in professional and graduate programs. The student will always be the leading expert regarding the student experience—their insight has proven invaluable throughout our project. Additionally, we caution that these conversations with students should be ongoing over the years, and similar endeavors must be dynamic and adapt to the changing needs of students.

If you are interested in collaborating with us or have questions about our work, please email Ann Sinsheimer at ans24@pitt.edu.

[i] This work is explained in part in Ann Sinsheimer & Omid Fotuhi, Listening to Our Students: Fostering Resilience and Engagement to Promote Culture Change in Legal Education, 26 Legal Writing 81 (2022).

From Left to Right: Dr. Omid Fotuhi, Dr. Ann Sinsheimer,
Professor Andrele St. Val, Senior Data Scientist Ciara Willett
June 14, 2023 by
Barbara Glesner FInes

The Curse of Coverage and Professional Identity Formation

By: Barbara Glesner Fines, Dean and Rubey M. Hulen Professor of Law, UMKC School of Law

In any conversation about integrating greater opportunity for professional identity formation pedagogy into the curriculum, particularly when suggesting that this be part of the required doctrinal curriculum, one will hear an objection that there is no room.[i]  For many doctrinal teachers, incorporating professional identity formation opportunities or focus into classes would require sacrificing critical doctrinal content and analytical skills.  The pressures toward coverage as a course goal are not insubstantial.  Textbooks grow exponentially each year, reflecting the growing breadth of the law and legal resources.  If a faculty member assigns only a small portion of a textbook, or their syllabus identifies far fewer topics than those contained in the syllabi of other professors teaching the same course, then students feel cheated. The “mile-wide, inch-thick” bar exam looms over all.

The pressures toward broad coverage of doctrine as the primary goal of course design are premised on a number of false premises about student learning.  First, faculty presume that coverage means learning, when research tells us that more content does not mean more learning. “If learning is to endure in a flexible, adaptable way for future use, coverage cannot work.  It leaves us with only easily confused or easily forgotten facts, definitions, and formulas to plug into rigid questions that look just like the ones covered.”[ii]  Research in undergraduate programs and medical schools confirms that more content does not lead to more learning.  Deep learning requires context, repetition, application, and reflection.  For this reason, experts in course design emphasize focusing on “the big questions” or the “hard parts” of a course, so that students can master not only a doctrinal subject but also an approach to learning that subject that will support their lifelong learning.

Second, faculty presume that professional identity formation opportunities are disconnected from knowledge and skills, rather than providing the critical context that motivates and supports deep learning.  Quite the opposite is true.  Students approach their subject-matter study with much greater engagement and a broader lens when they are asked to do the following: (1) consider themselves in the role of attorney in applying a particular doctrine; (2) examine how the law impacted the individual clients in the cases they are studying; or (3) reflect on how the values brought forth in the classroom discussions comport with their own personal values and experience.

Third, faculty presume that the classroom is the primary locus of learning, when even the American Bar Association’s definition of a credit hour recognizes that most of a student’s learning occurs outside of class.  Classroom time is only one-third of the time students devote to any given subject.  Many faculty are coming to realize that this precious time in which students are together in the classroom is squandered if the opportunities for discussion, debate, and practice are spent on lectures (even if interspersed with question prompts) designed to cover content.  Even before the pandemic disrupted pedagogies, faculty had discovered the possibilities of a flipped classroom – providing lectures and efficient delivery of knowledge transfer outside of class and using class time to focus on development of skills and perspectives.  Faculty can then more easily take a small but significant further step to ensure that a frame for these exercises is the student’s own development as a professional.

So how do we exorcise the curse of coverage and make room for opportunities for professional identity formation in the classroom?  We do so by questioning the assumptions that more content is critical to learning and instead focusing on the big questions, marrying professional formation with knowledge and skill development, and finding more efficient ways to deliver content instruction outside of class so as to engage students more fully in the classroom.  Please reach out to me at bglesnerfines@umkc.edu if you have any questions or comments.

[i] This piece is excerpted from The Curse of Coverage and Professional Identity Formation, U. St. Thomas L. Rev. (Forthcoming 2023).

[ii] Grant P. Wiggins & Jay McTighe, Understanding By Design 46 (2nd ed. 2005)(Lee Shulman, Taking Learning Seriously, 31(4) Change 10, 12 (July/August 1999).)


Barbara Glesner Fines is
the Dean and Rubey M. Hulen
Professor of Law at the
University of Missouri-Kansas City
School of Law.
May 24, 2023 by
David Grenardo

How Law Students of Faith Can Respond to Imposter Syndrome

By: David A. Grenardo, Professor of Law and Associate Director of the Holloran Center for Ethical Leadership in the Professions, University of St. Thomas School of Law

Imposter syndrome can impede a law student’s (and lawyer’s) ability to develop their professional identity. Several legal scholars acknowledge that an aspect of one’s professional identity includes their spiritual or religious beliefs and/or their faith tradition.[1] The Notre Dame Journal of Law, Ethics & Public Policy recently published How A Person of Faith Can Address Imposter Syndrome in Law School on its Considerations blog. The short article briefly discusses the prevalence of imposter syndrome in law school, and it provides a number of ways that a law student of faith can address imposter syndrome.

Should you have any questions or comments about this post, please email me at gren2380@stthomas.edu.

David Grenardo is a Professor of Law and Associate Director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law.

[1] See, e.g., Isabelle R. Gunning, Lawyers of All Faiths: Constructing Professional Identity and Finding Common Ground, 39 J. LEGAL PROF. 231, 269 (2015); Neil W. Hamilton et al., Empirical Evidence That Legal Education Can Foster Student Professionalism/Professional Formation to Become an Effective Lawyer, 10 U. St. Thomas L.J. 11, 29 (2012); Robert K. Vischer, Moral Engagement Without the ”Moral Law”: A Post Canons View of Attorneys’ Moral Accountability, 2008 J. Prof. Law. 213, 232 (2008).

April 19, 2023 by
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:

  1. 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.
  2. 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.
  3. 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
Linda Sugin

Does Law School Have to Suck?

By: Linda Sugin, Professor of Law & Faculty Director for the Office of Professionalism, Fordham Law School

The three-part series published in the National Law Journal, “Does Law School Have to Suck?,” analyzes seven reasons why law students are unhappy.  In the series, I also propose changes that law schools and the legal profession should adopt to transform the student experience by reforming curriculum, assessment, hiring, and financing.  The solutions advocated reflect two major themes – creating inclusive and supportive communities and individuating the development of professional identity for law students.  These reforms would improve learning and help students build a wider range of capabilities necessary for professional success and satisfaction.

Here is a link to the three-part series published in the National Law Journal on March 30, April 4, and April 6, 2023. Feel free to contact me at lsugin@fordham.edu with questions or comments.

Linda Sugin is Professor of Law & Faculty Director for the Office of Professionalism at Fordham Law School in New York.

April 11, 2023 by
Kendall Kerew

A Chat with ChatGPT: The Uniquely Human Aspects of Lawyering

By: Kendall L. Kerew, Associate Clinical Professor of Law and Director of Externships, Georgia State University College of Law; Holloran Center Fellow 

Last month, I had the privilege of participating in the 2023 Wake Forest Law Review Symposium: Leading Change in the Legal Profession.[1] I was part of a panel with Luke Bierman (Elon School of Law) and Maria Savasta-Kennedy (University of North Carolina School of Law) entitled, “Experiential Education and Lawyer Development.” Specifically, the panel “explore[d] the history of experiential education in law schools; the current status of experiential education in American legal education; and the role of experiential education, including clinics, externships, simulations, and more in shaping the professional identity of law students and lawyers.”[2]

Given the focus of the panel, my prepared remarks enumerated four reasons why experiential education should be central to how we teach law students now and in the future: 1) the requirement that law schools incorporate professional identity formation throughout the curriculum because learning while in the role of lawyer, where a student experiences the integration of knowledge, skills, and values, is particularly well-suited to examining one’s emerging professional identity;[3]  2) the requirement that law schools provide education on bias, cross-cultural competency, and racism because, for students in law clinics or field placements, one of the instances must occur before, concurrently with, or part of students’ enrollment in clinical or field placement courses;[4] 3) the development of the NextGen Bar Exam and efforts to ensure alternative pathways to licensure because the path forward is focused much less on rote memorization and more on the application of knowledge and skills;[5] and 4) the greater role artificial intelligence is likely to play in law practice because experiential education teaches lawyering skills that are uniquely human.

In this blog post, I want to focus on the last reason I posited for why experiential education is particularly relevant to the future of legal education: the greater role artificial intelligence is likely to play in law school and law practice. I am sure you have heard the news stories about ChatGPT writing passing answers to the bar exam and law school exams,[6] how ChatGPT can improve student legal writing,[7] how a judge used ChatGPT to write a ruling,[8]  and that ChatGPT may end up making lawyers obsolete.[9] Given all the attention ChatGPT has been getting, I thought it would be interesting to ask ChatGPT the following question and share it as part of my remarks:

What aspects of lawyering cannot be replaced by AI?

This was ChatGPT’s response:

There are several aspects of lawyering that cannot be replaced by AI, including:

Empathy and Emotional Intelligence: Lawyers need to understand their clients’ emotions and needs to provide effective legal advice. AI lacks the ability to comprehend and express emotions, making it difficult for it to replace the empathy and emotional intelligence needed in the legal profession.

Creativity and Critical Thinking: Lawyers often need to come up with creative solutions to complex legal problems. AI, while capable of analyzing vast amounts of data and generating insights, lacks the creativity and critical thinking skills needed to approach legal issues in novel and effective ways.

Advocacy and Persuasion: A significant part of a lawyer’s role involves advocating for their clients’ interests in court or in negotiations. This requires excellent communication skills, the ability to read and respond to non-verbal cues, and the art of persuasion. While AI can analyze and predict the outcome of legal disputes, it cannot advocate for a client in a courtroom.

Ethics and Professionalism: Lawyers are bound by strict ethical and professional standards, which require them to act in the best interests of their clients while upholding the rule of law. AI lacks the moral compass and judgment necessary to make ethical decisions, making it unsuitable for replacing the role of a lawyer.

Client Relationship Management: A lawyer’s success often depends on their ability to build and maintain strong relationships with their clients. AI lacks the ability to build rapport or provide personalized attention to clients, making it difficult to replace the human touch needed in client relationship management.

If you are reading this blog, you probably already knew this and felt secure in the future of our profession. Nonetheless, ChatGPT’s answer encompasses the very things we teach in experiential education and explore through professional identity formation. So for this blog post, I decided to ask ChatGPT a follow-up question:

Why is professional identity formation important to legal education?

This was ChatGPT’s response:

Professional identity formation is essential to legal education because it shapes how law students understand themselves as future lawyers and how they approach their legal careers. A strong professional identity helps students to develop a sense of purpose and a commitment to the values and ethics of the legal profession.

Here are some key reasons why professional identity formation is important to legal education:

Ethical and Professional Conduct: A strong professional identity helps students develop a sense of responsibility towards ethical and professional conduct, which is essential for the effective functioning of the legal system.

Career Satisfaction: By developing a strong professional identity, law students can better understand their strengths and interests, and align them with the legal career path that is most fulfilling to them.

Client Relationships: A strong professional identity can help students develop the skills and mindset needed to build strong relationships with clients based on trust, integrity, and empathy.

Effective Advocacy: Professional identity formation can help law students develop the skills and values needed to be effective advocates for their clients, while still maintaining their own sense of professional ethics.

Overall, professional identity formation is an essential component of legal education, as it helps students develop the knowledge, skills, and values needed to become competent and ethical lawyers.

This response, coupled with ChatGPT’s response to my initial question, reinforced what we already know: professional identity formation is uniquely human and a necessary component of preparing law students to become the lawyers of the future – lawyers who cannot be replaced by artificial intelligence.

Please feel free to reach out to me at kkerew@gsu.edu if you have any questions or comments.

[1] http://www.wakeforestlawreview.com/2023-symposium/.

[2] Id.

[3] See ABA Standards and Rules of Procedure for Approval of Law Schools 2022–2023, Standard 303(b)(3), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/2022-2023/2022-2023-standards-and-rules-of-procedure.pdf; Timothy W. Floyd & Kendall L. Kerew, Marking the Path from Law Student to Lawyer: Using Field Placement Courses to Facilitate the Deliberate Exploration of Professional Identity and Purpose, 68 Mercer L. Rev. 767, 790 (2017).

[4] See ABA Standards and Rules of Procedure for Approval of Law Schools 2022–2023, Standard 303(c), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standards/2022-2023/2022-2023-standards-and-rules-of-procedure.pdf.

[5] See About the NextGen Bar Exam, https://nextgenbarexam.ncbex.org/ (”Set to debut in July 2026, the NextGen Bar Exam will test on a broad range of foundational lawyering skills, utilizing a focused set of clearly identified fundamental legal concepts and principles needed in today’s practice of law.”).

[6] See Debra Cassesns Weiss, Latest version of ChatGPT aces bar exam with score nearing 90th Percentile, ABA Journal (March 16, 2023), https://www.abajournal.com/web/article/latest-version-of-chatgpt-aces-the-bar-exam-with-score-in-90th-percentile?utm_medium=email&utm_source=salesforce_642881&sc_sid=01075549&utm_campaign=weekly_email&promo=&utm_content=&additional4=&additional5=&sfmc_j=642881&sfmc_s=45062043&sfmc_l=1527&sfmc_jb=18001&sfmc_mid=100027443&sfmc_u=19035492.

[7] See Stephanie Francis Ward, Can ChatGPT help law students to write better? ABA Journal (March 6, 2023), https://www.abajournal.com/web/article/can-chatgpt-help-law-students-learn-to-write-better.

[8] See Columbian judge uses ChatGPT in ruling on child’s medical rights case, CBS News (Feb. 2, 2023), https://www.cbsnews.com/news/colombian-judge-uses-chatgpt-in-ruling-on-childs-medical-rights-case/.

[9] See Jenna Greene, Will ChatGPT make lawyers obsolete (Hint: be afraid), Reuters (Dec. 9, 2022), https://www.reuters.com/legal/transactional/will-chatgpt-make-lawyers-obsolete-hint-be-afraid-2022-12-09/.

 

March 21, 2023 by
Janet Stearns

When Does Professional Identity Formation Begin? Lessons in Candor in the Application to Law School

By: Janet Stearns, Dean of Students, University of Miami School of Law

Some law school educators may believe that professional identity formation of law students begins in law school. I argue that it begins earlier…. when an applicant first completes his or her law school application.

The Law School Application Process:

Applicants to law school must recognize the significance of candor in responding thoroughly and honestly to all questions on the application.

The Law School Admission Council (LSAC) website addresses this in discussing Ethical Conduct In Applying to Law School.   On this website, LSAC explains:

Your submission of an application for admission to law school is your first step in the process of becoming a lawyer. Now is the time, as you take this first, important step, to dedicate yourself to a personal standard for your conduct that consists of the highest levels of honesty and ethical behavior.

Many law schools, including ours, will ask background questions trying to clarify past academic misconduct, criminal history, and any other issues that might impact on character and fitness. The responses to these questions might not keep an applicant out of law school, but some responses might impact on screening for character and fitness and ultimate bar admission. Dishonesty or lack of candor however is a significant issue with significant consequences.  Misrepresentation on the application to law school is also a sanctionable offense under our Honor Code.

Amending the Application:

In many jurisdictions, the character and fitness screening process will require students to submit the initial application to law school. In Florida, the Board of Bar Examiners (BBE) speaks to our 1L students in the first month of school about the bar application process. The purpose of this presentation is to encourage early applications and character and fitness screening to the BBE. We quite commonly see a significant number of requests for amendments to law school applications following this presentation, as the BBE explains to students the expectations of candor and the full import of any failure to disclose.

Last year, we published and clarified our policies on Bar Amendments. We wanted to encourage all amendments within 30 days of the BBE presentation. This also helps our admissions office address any significant misrepresentations early in the student’s career.

Students have thirty (30) days from the date of the presentation to amend their law school application. Full candor is expected during this period so that all applications are fully, accurately, and completely updated, and all disclosures are current. All amendments are reviewed both by the Dean of Students and the Dean of Admissions.

The full policy is available on our website.

Inevitably, there are students who surface during their 2L and 3L years with additional amendments, but we have decided to address those with additional documentation and sanctions given the lack of both candor and timeliness in making the disclosures.  We are finding many opportunities to teach important lessons of professionalism and candor.

Consequences for Lack of Candor and Failure to Timely Amend:

A student who misrepresents on his or her application to law school may face serious consequences on the path to becoming a lawyer.

For example, In Re Anonymous Applicant for Admission to the S. Carolina Bar, 437 S. C. 1 (2022), Applicant, who uses he/him pronouns, seems to have applied to law school to start in Fall of 2019.  He responded “no” untruthfully to the following two questions:

Had you ever been charged, arrested, formally accused, or convicted of a crime other than a minor parking or traffic violation?

Have you ever been subjected to disciplinary action by any of the educational institutions [he previously attended]?

Following admission in 2019, he disclosed that he had been charged as a minor in possession of alcohol.  In December of 2020, he then amended his disclosure and more fully explained the charge.  In August of 2020, he disclosed a separate altercation with police from a separate incident. In December of that same year, he further amended his application to reveal a traffic ticket. Finally, shortly before being called to a hearing, he made separate disclosure as to a fraternity “prank” that resulted in a fraternity reprimand, which was seemingly never appropriately amended to his law school application.

The South Carolina Supreme Court, in reviewing this entire record together with some troubling LinkedIn social media issues, decided to delay his bar admission one full year. As the court wrote:

In light of the concerning increase in nondisclosures this Court has seen in recent years….today we take the unusual step of publishing our decision in this case while allowing Applicant to remain anonymous. Our goal in doing so is to warn potential law students, law schools, and bar applicants of the serious consequences of nondisclosure and to encourage law school applicants to completely and fully disclose all required information at the time their applications are first submitted.

As this case demonstrates, the consequences of errors and misrepresentations in the law school application, and the failure to timely correct, can significantly impact the future lawyer. I am deeply grateful to Dean Larry Cunningham of the Charleston School of Law for bringing this important case to my attention.

If you have further thoughts and questions, please let’s continue the conversation. You can reach me at jstearns@law.miami.edu. And take this post as an opportunity to connect with your colleagues in admissions so that they can join the conversation on professional identity formation.

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

March 16, 2023 by
Janet Stearns

The Case of the Mortified Toe: Some Reflections on Tom Sawyer, Rescheduling Exams, and Professional Identity

By: Janet Stearns, Dean of Students, University of Miami School of Law

Many life lessons are addressed by Mark Twain in The Adventures of Mark Twain.[1]

Chapter 6 begins with Tom waking up “miserable” on a Monday morning. “Monday mornings always found him so—because it began another week’s slow suffering in school….Presently it occurred to him that he wished he was sick; then he could stay home from school.”  Tom ”canvassed his system” in a search for possible ailments that might keep him home. He finally comes upon his toe and a loose tooth.  Tom starts groaning so much that his brother goes running for his Aunt Polly to report that Tom is “dying.”  When Aunt Polly enters Tom’s room, Tom reports “my sore toe’s mortified.”  After a good laugh, followed by Aunt Polly pulling the loose tooth, Tom is sent off to school for the day.

Fast forward to my teenage years, when I was attending summer camp in New Rochelle, New York.  The camp was focused on arts (which I enjoyed), but we went swimming several times a week (which I hated.)  The only way to get out of swimming was with a parent’s note.  Once I requested such a note from my dad.  My recollection (but the evidence is long gone) is that my dad handwrote out a note to the camp director which went something like this:

Please excuse Janet from swimming today. She has a mortified toe.

The note worked, and I didn’t have to go to swimming, and in retrospect, everyone likely had a good laugh at my expense.  The key point, though, is this: at that moment, swimming was not an essential part of that camp experience or my professional life.  In my childhood, I could relate to Tom Sawyer’s desire to avoid uncomfortable, difficult things.

I reveal this family secret for purposes of explaining some of the mindset, and insight, that I bring to my role as dean of students.  I want to discuss and highlight some of the challenges that we are all facing in response to a wide range of requests around examinations and other interim assessments.  We as law school administrators must bring a professional identity lens to evaluating these requests and consider the lessons that we are teaching with our responses.

Examination Policy

Our Law School Handbook, and our faculty, have delegated to me as dean of students the duty to exercise discretion in evaluating situations that arise during the examination period and deciding when, and how much, exams will be postponed.  Our Handbook references as possible reasons for rescheduling “personal illness requiring the care of a physician, pregnancy or childbirth, death or serious illness in the student’s immediate family or household, or because of religious prohibitions certified by an appropriate religious professional.”[2]  Between December 5 and 19, 2022 out of a student body of 1,300 students, we rescheduled about 170 exams that were delayed for a range of medical or family issues.  Note that these are distinct from testing accommodations granted to students under the ADA for recognized disabilities, and relate instead to injuries, accidents, illnesses, and other short-term situations not covered by the ADA.

Here is some sampling and paraphrasing of situations that I have received during this recent testing period, and some of my approaches.

Please excuse me from testing as I have COVID, mono, flu, pink-eye (and typically note from medical professional)

For a range of medical and particularly contagious diseases, we do not expect students to be on campus for in-class exams.  The protocols on these issues have become only clearer in the aftermath of the pandemic.  If exams are take-home exams, and the student is sufficiently healthy, we will permit remote testing.  We will typically postpone in-class exams until the student is cleared by a medical professional.

Please excuse me from testing as I am in emergency room (for kidney stones, appendicitis, surgery, broken bones).

Students who find themselves in the hospital or emergency room do not need to test until released and healthy enough to do so.  This would cover both in-class and remote exams.  In some cases, depending on the severity of the hospitalization, a student may not be able to test at all during the testing period and then need to make up a course in a subsequent semester.

Please excuse me from testing as my parent/spouse/partner/grandparent or pet has died or is imminently about to die.

I typically work with students in these situations to try to evaluate the best path forward for testing and completing the semester.  This will depend on the ability of the student to compartmentalize and focus on the task at hand, proximity of family to support, and customs around celebrating the life of the deceased love one.  Some will want a few days immediately for bereavement and others will wish to complete testing and then be free to travel.

We are receiving an increasing number of requests relating to pet illnesses. As we know, we have many students with significant emotion around beloved furry family members.  We have tried to show some compassion to students around the death of a pet while recognizing that this is an expansion of the definition of “immediate family or household.” This is also an issue where legal employers may vary as to how much “bereavement” time would be granted for pets as opposed to family members.

Please excuse me from testing as I am going through medication changes that are impacting my sleep or ability to focus on the exam; or I am unable to access my prescribed medications due to market unavailability.

We are aware that we have a significant number of our law students who are prescribed medications for a range of emotional and learning issues including depression, anxiety, and attention deficit disorders, and, thus, they take (for example) antidepressants and anti-anxiety medications.[3]  In general, these medications require some period of weeks if not longer to adjust to changes in dosage.  In the Fall of 2022, there were significant disruptions in the supply chain for Adderall, a commonly used stimulant to treat ADHD.[4]  It was therefore not surprising that students were coming forward and asking for exam accommodations.

The issues of adding medications, changing medications, or withdrawing from medications are real.  That said, these are issues that are not easily addressed with a short-term exam accommodation, any more than they could be addressed in a workplace with paid days off.  We were counseling students to evaluate their own ability to move forward with testing or to consider dropping classes or postponing the submission of papers where possible.  We are still struggling to evaluate reasonable accommodations for this category of situation.

Please excuse law student from testing as he/she/they are suffering from generalized anxiety and need additional time to prepare.

A significant group of today’s law students are experiencing anxiety.  According to the 2021 Survey of Law Student Well-Being, 39.8% of law students had a diagnosis of anxiety during their lifetime, 22.5% of whom were diagnosed after starting law school.[5]  This anxiety is real, and it is manifesting in an array of emotional and physical impacts on our students.

And yet, I do not know how we address this pervasive issue of anxiety in the context of a policy to reschedule exams for personal illness.  I have thought long and hard on this and I don’t have a fair way to evaluate how much anxiety triggers an exam postponement, or how many days would be sufficient for the medical situation to resolve.  In my experience, I will distinguish this type of request from that of a student who is suffering from an acute anxiety attack in advance of, or during, an examination.  We typically treat those as medical emergencies and work with the student to evaluate if they will be well enough to return to testing or if they need to be treated for the medical emergency.  But for cases of generalized anxiety, we need to articulate an approach, based on our lens of professional identity preparation, about expectations in our legal community.  And once articulated, we must communicate this clearly to our students throughout their law school experience.

When does a situation merit our throwing a student a compassionate lifeline, and when do we need to clarify that we cannot grant these requests and provide reasons for the life lessons that we are trying to teach?  I welcome thoughts and reactions from our community as we continue to navigate these issues.  You can reach me at jstearns@law.miami.edu.

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

[1] MARK TWAIN, THE ADVENTURES OF TOM SAWYER 43-45 (Signet Classic Edition, 2002).

[2] Miami Law Student Handbook 2022-2023, https://student.law.miami.edu/policies/student-conduct/handbook/index.html, at page 12.

[3] Jaffe, Organ, and Bender, It’s Okay Not to Be Okay: The 2021 Survey of Law Student Well-Being, 60 University of Louisville Law Review (2022) at 461.

[4] FDA Announces Shortage of Adderall, https://www.fda.gov/drugs/drug-safety-and-availability/fda-announces-shortage-adderall (October 12, 2022).

[5] Jaffe, Organ, and Bender, It’s Okay Not to Be Okay: The 2021 Survey of Law Student Well-Being, 60 University of Louisville Law Review (2022), supra note 3 at 464.

February 23, 2023 by
Patrick Longan

Professional Identity, Fast and Slow

By: Pat Longan, William Augustus Bootle Chair in Ethics and Professionalism, Director of the Mercer Center for Legal Ethics and Professionalism, Mercer University School of Law

At Mercer University School of Law, we use virtue ethics to teach professional identity. We have drawn on the dozens of professionalism codes and creeds adopted by courts and bar associations over the last thirty-five years and distilled from them the virtues that a lawyer needs. Those virtues are excellence, fidelity to the client, fidelity to the law, public spiritedness, civility, and practical wisdom. Our students learn of the roots of this approach in Aristotelian ethics. We are convinced that this is the best approach to professional identity. Indeed, I have written elsewhere that professional identity is virtue ethics by another name.

There is sometimes a problem in getting this message across. Some lawyers and some law students recoil at the mention of “virtue.” To them, it sounds preachy. Then when we utter the word “Aristotle,” their eyes begin to roll at these academics who are revealing how detached they are from the everyday world of lawyering. (You don’t want to know what they say and do if you use the word “Aristotelian.”) With these audiences, we need another way to convey the key insights of virtue ethics for the professional identities of lawyers without using what they will hear as off-putting academic mumbo-jumbo.

My answer is to make an analogy to the Nobel Prize-winning work of Daniel Kahneman (done in collaboration with Amos Tversky, who died before he could share in the Nobel). Professor Kahneman popularized their work in Thinking, Fast and Slow, which was published in 2011 and has sold more than 2.6 million copies.

Kahneman explains two ways in which people make decisions. Some come from “System 1,” which “operates automatically and quickly, with little or no effort and no sense of voluntary control.” System 1 engages in “thinking fast.” Other decisions come from “System 2,” which “allocates attention to the effortful mental activities that demand it …. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration.” System 2 controls “thinking slow.”

For lawyers, the analogy to “thinking fast” is the cultivation of habits and dispositions. Take habits first. Part of a lawyer’s professional identity is excellence. An excellent lawyer shows up on time and meets all deadlines. In the busy life of a practicing attorney, this does not happen because the lawyer sits back and reflects deeply on the need to be punctual for meetings and court appearances. It does not happen because the lawyer takes the time to contemplate each filing deadline and ponder over the importance of meeting it. These parts of excellence emerge when the lawyer cultivates the right habits.

Of course—just between us—much of virtue ethics is about the cultivation of good habits. But habit formation also fits into the more digestible “thinking fast” framework.

As professors, we have enormous power to help our students cultivate the right habits. In our mandatory professional identity course at Mercer, punctuality is rigidly enforced. Students may not enter any class late without advance permission, no matter the reason. When they show up late and miss class, they must explain why and are required to come up with a plan to prevent tardiness in the future. For some, it is simply a matter of setting another alarm. For others, it is starting a long commute much earlier in case of traffic. Regardless of the details, they are developing the habit of punctuality, one of the habits that supports excellence.

We do something similar with the habit of meeting deadlines. The students know that by 8 a.m. every Monday they must complete a writing assignment on Mercer’s learning management system. The assignment closes automatically at 8 a.m. Any students who are late with the assignment must contact me, and I require them to come up with a plan to avoid late submissions in the future. They are cultivating a habit of attentiveness to deadlines, another habit that supports excellence.

In other situations, a lawyer must deal immediately with a problem—they must be ready to “think fast”—and something more than habit is needed. For example, a lawyer may unexpectedly encounter discourtesy or a lack of cooperation from opposing counsel. The lawyer must be prepared to respond appropriately to incivility in the moment. There is no time to reflect on a “Lawyer’s Creed” or an “Aspirational Statement on Professionalism.” The natural tendency (especially for someone like me who grew up with three older brothers) is to return fire. Incivility begets incivility, and the atmosphere quickly becomes toxic. Litigation slows down. It becomes more expensive for the clients and more unpleasant for clients and lawyers alike.

Virtue ethics would say that the lawyer who is the target of the discourtesy should deploy the virtue of civility and break the cycle. How do you prepare students and lawyers to do that when there is no time to think when a fellow lawyer is snide in a deposition, and when these students and lawyers are the ones who roll their eyes at the notion that Aristotle has anything to say about it?

The answer is to introduce the concept of a “disposition,” in the sense of one’s natural inclination to act in a particular way in response to a particular situation. Again, the terminology sometimes can get in the way because lawyers and students think that, by “disposition,” we mean a mood or characteristic attitude, as in “he has a grumpy disposition.” Students understand the concept better if you describe a disposition as a “default setting.” A lawyer whose default setting is not to be surprised or angered at another’s incivility, and who is therefore disposed not to respond in kind to discourtesy, is much more likely to defuse rather than escalate a conflict with an uncivil adversary. There is time before the fact to reflect and decide on what your disposition should be. Having the right disposition then enables the lawyer to do the right thing in the moment when there is no time to ponder. The lawyer is “thinking fast.”

Cultivating such a disposition or default setting in students requires some work. We first have to expose them to the toxin of incivility by having them watch or listen to examples. For many, their natural response to this surprising prospect is fight or flight. With time and effort, we can help them understand the inevitability of encountering these situations, the harm that flows from them, and some strategies for dealing with them. We must “think slow” with them at first. But the ultimate goal is to send them out into the world prepared to encounter others’ incivility and become naturally disposed not to respond in kind. Their professional identity will include an internal commitment to maintaining civility even in difficult and infuriating moments, because they have the right “default setting” or “disposition.”

Lawyers must also, of course, be able to “think slow.” An essential component of professional identity is the cultivation of the “master virtue” of practical wisdom, which enables lawyers to chart or recommend a course of action in uncertain circumstances when multiple goals are in conflict. Again, terminology can get in the way. Lawyers and law students may tune out to the mention of a “master virtue” or “practical wisdom” (don’t ask what they do if you use the word “phronesis”). But the need for practical wisdom translates easily into the need for good judgment, and no lawyer or law student will roll their eyes at the proposition that lawyers need good judgment.

Teaching judgment is harder than teaching punctuality. We use small group (25 to 30 students) weekly meetings in which we discuss a series of “practical wisdom” exercises and put the students in role to exercise judgment about what to do and how to do it. (These exercises are available at https://law.mercer.edu/academics/centers/clep/education.cfm). All of them present circumstances where there is time to “think slow,” work through different possibilities, and contemplate what might follow from each option. We train them to ask and answer the question, “what if I do this?” as part of the exercise of good judgment.

For example, one problem requires the students to decide (in the role of a junior non-equity partner in a large law firm) what, if anything, to do when they suspect a senior partner
of overbilling a client. The junior partner might choose to do nothing, talk to the partner, or report her suspicions within the firm. For each possibility (and any others the students generate), their preparation for the discussion includes how to go about implementing the decision, as well as the anticipated consequences of each decision, and a plan for dealing with those possible consequences.

For a lawyer to have the right kind of professional identity, the lawyer must cultivate the right virtues. Aristotle and his virtue ethics are powerful tools for helping law students get started on the right path. For skeptical students and lawyers, the concept of professional identity as “thinking fast and slow” may be more relatable. The need to cultivate the rights habits and dispositions, and to learn to exercise good judgment, are things we all should be able to agree on, regardless of the terminology.

Please feel free to contact me at longan_p@law.mercer.edu if you any questions or comments.

Patrick Longan is the William Augustus Bootle Chair in Ethics and Professionalism in the Practice of Law at Mercer University School of Law
and is Director of the Mercer Center for Legal Ethics and Professionalism

February 21, 2023 by
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:

  1. The best kind of public conversation about a topic of shared concern is one that includes participation from the greatest number of people present.
  2. 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:

  1. As facilitator, sit in a circle with everyone else.
  2. At the start of the conversation, collaboratively create clear, explicit rules of engagement for speakers and listeners to follow.
  3. At first, use open-ended questions to facilitate a more inclusive conversation.
  4. Once trust is established, have courage to directly invite participants to share their deepest hopes or deepest concerns on the subject.
  5. 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.

  1. 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.
  2. 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.”)
  1. 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.

  2. 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.

  3. 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