PRAGMATIC REFORM OF LEGAL EDUCATION -- THREE ESSAYS

PREFACE

Pragmatic Reform is a collection of three essays. The first essay, Why A Solution Is Necessary, provides an historical context. It is the historical context that explains why there is a problem (and thus why a solution is necessary).

The second essay, Reaching Solutions, addresses how to teach substantive law, legal writing skills and legal skills in the context of a modern law school and within the budgetary constraints and real limits that constrain modern law schools.

Last in the series, the essay Applications provides the nuts and bolts of how to implement the solutions proposed in Reaching Solutions. It covers both what can be done and what should be done and reaches from pre-law school preparation to preparing students for actual legal practice.

The appendix to this collection contains the perspectives of other authors and commentators.

Before you read this collection, please jot down answers to the following question:

OF THE SUGGESTED REFORMS AND CHANGES YOU HAVE SEEN PROPOSED FOR LEGAL EDUCATION:

a) Which ones help students learn the law better?

b) Which ones prepare students best for legal practice?

c) Which ones are practical?

Why A Solution Is Necessary begins on Page 2.

Reaching Solutions begins on Page 4.

Applications begins on Page 10.

Appendixes begin on Page 18.

WHY A SOLUTION IS NECESSARY

I. INTRODUCTION

Scientific methods and observation have been applied to legal education methods. As a result, we know that the evolution of the method used to teach the first year of law school has resulted in a method that can be shown to be the least conducive to learning of any educational model.

Further, changes in the practice of law have resulted in the second and third year of law school failing to meet important educational needs.

The premise issues are:

1. The current method of teaching obstructs learning.

2. The current course of instruction has important gaps.

The question implied, and answered in the next essay, is how to set a pragmatic course towards resolving the premise issues.

This purpose of this essay is to explain how there came to be a problem. It provides an historical context and leads toward the overview of solutions offered and discussed in this essay series.

II. LAW IN THE 1920s

The practice of law used to exist in a world with minimal written documents -- at least from a modern lawyer's perspective. For example, in 1964, the Texas Family Code, with annotations, was shorter than a standard Texas divorce decree was in 1994.

In the 1920s, a lawyer needed to be able to talk and to reason from general principles. Reading law from that date shows extensive citations by one jurisdiction to the law of the next. Learned texts were commonly cited.

Even in the 1960s, it was common for Courts to cite to the Restatements, to hornbooks, to the law of sister states. Oral style analysis, analogy, logic and reason were all important and the arguments and decisions reflected an oral tradition.

By the 1980s the practice of law was firmly a written practice. By the 1990s, law had ceased to be oral in logic, tradition or application.

Which is one reason why the teaching of law needs to move forward out of the 1930s and 1940s and into the next century. It needs to move from an oral fixation to teaching for a written practice.

III. STRENGTHS OF THE PAST

The Socratic method used in law schools taught students to reason, under pressure, from general principles to specific applications. With a limited collection of specific cases, and limited numbers of students, dialog and instruction focused on what students needed to know to "think like a lawyer."

That is, it taught students to master a new vocabulary and the structure of oral logic as used by attorneys.

The Socratic method taught a style well suited to hours long oral arguments in cases where a trial or appellate court might spend days on argument in a pivotal case.

The general skill of inductive oral argument was all that students needed to know for the general practice of law. Lincoln was a great lawyer and a great oral logician.

Lincoln rarely needed to write or brief the law and would have found written logic and skills unrelated to his law practice. What law student could hope for more than to be the lawyer Lincoln was?

Three years of practicing oral skills, and watching other students practice oral skills, was enough to teach a student to think in the right fashion and to equip the student with the skills essential to the practice of law.

IV. CURRENT REALITY

The current practice of law consists of a large body of cases and codes that cover substantial areas. Divided between what was the law in 1950 and before, vs. what has become the law since, the sheer difference in volume is astounding. It is also impressive to consider the difference in weight of the smaller conflicts.

What a lawyer now does is work from specific written works to deductive conclusions where instead of speaking, the lawyer writes. That is, instead of talking and reasoning generally and inductively from sparse sources, the lawyer now analyzes and writes specifically and deductively from numerous sources.

Instead of inductive oral logic, lawyers use deductive written logic. That is, by the way, the reason that the opinions of Courts of Appeals are getting more and more structured and more and more readable.

V. THE FOUNDATION FOR CHANGE

My conclusion is that the teaching of Law for the present and beyond needs to cover the following bases:

a) teaching substantive law. The traditional approach is that a student was in law school to learn to think -- all substantive knowledge could be imparted later. The exceptions to this approach (e.g. tax related classes) prove the rule.

Actually teaching substantive law (rather than using it as a background for stretching minds) is appropriate because law students can no longer quickly pick up the law by brief study and inductive logic and cannot expect to learn it in their day to day legal practice outside of law school.

b) teaching legal writing skills. This does not mean teaching law related scholastic writing. While legal scholastic writing has had a gradual evolution, and produces some remarkable pieces, there is a surprising lack of cross-over between legal scholastic writing and practical legal writing. The world of a scholar and that of a lawyer cross less and less as time passes on.

Some of the skills of scholastic writing are important (cite and form checking), but the value for a law student who becomes a lawyer is in the rigor of the approach, not the subject itself. It would be nice for instruction to focus on actual needs.

c) teaching legal skills. This especially includes persuasive written legal skills. This is no longer a world where one can use general oral skills and just learn how to apply them. Modern legal practice consists of families of written skills.

Law school used to teach all of the essential skills. It still teaches the same skills, but what the world demands has changed. Further, outside of large firms and judicial clerkships -- the world of a law professor's experience, but not that of most students -- there is little training or provision of skills. Most young lawyers just train themselves in whatever haphazard fashion they work out.

Three years of law school ought to train them better than that.

Steve Marsh

Suggested Readings:

Cathaleen A. Roach, A River Runs Through It, 36 Arizona Law Review 667 (1994). This is a critical central essay detailing, in a rigorous scholastic fashion, the flaws in the current system from a scientific perspective.

Stephen R. Marsh, Critical Reform of Legal Education -- Three Essays.

REACHING SOLUTIONS

I. INTRODUCTION TO PHASE ONE

Solving the current problems in legal education requires a realistic approach -- working with what is possible and what can actually be done.

The solution proposed by this paper is aimed at the least expensive method and one that causes the least disruption in a law school's current method of operation.

A. THE FIRST STEP

Obtain two faculty members committed to ASP methods.

1. Step to be taken.

In either recruiting the next new faculty members or in setting tenure prerequsits (or both), focus on the willingess to commit to using ASP methods to teach a first year class. The methodology used will require more than one professor _and_ using professors will allow them to motivate and support each other.

2. What the step means and requires.

"ASP methods" means teaching a class with the full suite of modern teaching techniques. Weekly written assignments, context setting, and "Academic Support Program" methods (including explaining the hows and whys of outline, flow charting, study groups, etc. in context with the material taught).

To teach using ASP methods would require class size no larger than thirty-five students to a class and a class size of thirty would be preferrable. It would be feasible to have the same professor teach more than one section of the same class. (If possible, it would be appropriate to have one professor teach two sections and one three).

Probably the easiest class to apply ASP Methods to would be Civil Procedure using Joseph Glannon's Civil Procedure: Examples & Explanations.

3. Why this step.

Most needed change can be brought about by applying modern teaching methods while teaching modern learning methods. The core of the modern ASP method is using modern educational theory to teach students how to learn.

For the widest impact, this method needs to be taught and applied to the entire first year class, in context with domain-sensitive materials (i.e. as part of a law class). For the easiest implementation, it is best to start with a professor who does not know any other method and who is committed to the time and effort of using ASP methods.

4. Cost Differential.

Mild. For a school that uses the small section method for first year classes (five "large" sections and five "small" sections), changing to an ASP oriented class would allow the small section method to be discontinued with some set-off savings.

Small section classes for first year students consume 15 semester hours of first year class instruction (five classes at three hours each, plus the large section civil procedure class at 3 hours). The replacement method provides for consumption of fifteen hours of first year classes. (Five sections times 3 hours). In theory, it has a net improvement of three hours of instructional time.

However, since the next step is a functional replacement of the small section method ... the cost calculations change with further implementation (i.e. there are initial savings, but long term costs balance).

B. THE SECOND STEP

Study groups.

1. Step to be taken.

Require assigned study groups with faculty or quasi-faculty advisors (teaching assistants)-- for all first year students. Advisors would be expected to teach some ASP methods to the students and to help them in review and application of study methods.

2. What the step means and requires.

The step means that each of the 150 incoming students would be assigned to one of 30 study groups. They could trade study groups at will as long as each person remained in a study group with five to six students in the group.

Each study group would have a teaching assistant assigned to spend one hour a week with the study group (30 minutes x two meetings). Each study group would also be visited, for five minutes, once a month, by a faculty member.

The first eight meetings would consist of fifteen minutes of ASP materials and fifteen minutes of review and discussion of class materials. After that, the time would be spent in discussion.

This step requires preparing ASP materials for the faculty, and finding faculty members willing to spend the time in order to train teaching assistants.

This method anticipates a reliance on teaching assistants, with minimal true faculty involvement outside of teaching assistant training and preparation.

3. Why this step.

This introduces upper division students and some of the faculty to students and vice versa. Further, small study group methods are statistically the most effective (better than either individual tutoring or non-group study).

Also, using teaching assistants appears to be superior (when adjusted to cost) to using faculty, so that faculty could be used rarely, if at all, with an actual improvement in net cost to teaching ratios.

4. Cost Differential.

This requires a substantial amount of teaching assistant time. That is, it takes thirty hours a week of teaching assistant time. In the program providing this model, teaching assistants receive nine dollars an hour _or_ one hour of pass/fail seminar credit for functioning as a teaching assistant. Most choose the credit hours.

There is true faculty time in supervising and maintaining the teaching assistant network (and does not count time used outside the school year to teach and train the teaching assistants).

On the other hand, most of the time is spent at the beginning of the school year, and several programs assign this program and duty to the dean of student life as part of the existing academic support program.

This step will absorb the time saved by deleting the small sections (above) and should be expected to take up the same amount of actual faculty time and cost allocation (when the teaching assistants are factored in) as a three semester hour class.

5. Analogous Group.

MBA programs use teaching assistants (2nd and 3rd year students assigned to interact with study groups) and the teaching assistants are extremely effective.

In general, teaching assistants are considered a critical part of the MBA and ASP programs that use them. When provided structure and training, teaching assistants are valuable rather than an embarrassment.

C. THE THIRD STEP

Let time pass. Assimilate the learning model application and the teaching assistant program.

1. Step to be taken.

Let some time pass to acclimate the students and faculty. Ideally, the students and faculty should notice the improvement.

On a yearly basis, gently encourage faculty to recognize ASP methods in action where they are using them, and to apply ASP methods where they are not using them.

2. What the step means and requires.

This step means taking the time to digest the earlier steps. It requires patience and dedication.

3. Why this step.

To not outrun reality. To allow time for real world adjustments to the ASP model when applied to all students.

4. Cost Differential.

None. (Thank goodness).

INTRODUCTION TO PHASE TWO

Once the initial stage of teaching first year students how to learn (as well as what to learn) has begun, and faculty members are being acclimated to the use ASP methods in some areas, it is appropriate to begin phase two.

A. THE FIRST STEP

Orient students to life after law school by providing them with an orientation class.

1. Step to be taken.

Introduce seminars/classes on the nature of legal practice. It is also appropriate to consider hiring a faculty member with substantial small office experience.

2. What the step means and requires.

This is a class to prepare students for the realities of legal practice. Useful and perhaps necessary for 60% of the class.

This is the beginning of reality based education.

3. Why this step.

To help students.

Seriously stated, this step allows the law school that uses it the opportunity to teach students what 75% to 60% of the students really need to know (and what that 60% is not learning from the current instructional methods and focus).

4. Cost Differential.

Just another seminar or two ... In reality, this step probably requires a faculty member (if it is to be taught with proper focus and attention).

B. THE SECOND STEP

Expand ASP method use and reality orientation.

1. Step to be taken.

Emphasize ASP techniques in large section classes and in reality based seminars for second and third year students.

Require all "normal (non-cocurricular) students to take at least one practice related (reality based) seminar a year with a goal of three or four such seminars per student. Such seminars should have significant writing elements.

Each student should have continuous "legal writing (as a lawyer, not a scholar)" experiences throughout the last two years of law school.

2. What the step means and requires.

This step applies ASP techniques to courses that students need for successful survival when they go into practice.

3. Why this step.

Just as "classic" first year ASP is designed to help students survive in the hostile law school environment, second and third year ASP should be designed to help students survive in what is becoming a very hostile work environment.

This step aims at one, giving law students "legal practice" writing experiences (rather than the scholarly legal writing experiences co-curricular and paper writing classes provide) and at two providing students with realistic skills -- because modern legal practice is a written field and one where skills are rarely taught or provided for more than 60% of graduating J.D.s.

4. Cost Differential.

The more small class seminar experiences that are provided for students, the more faculty are required.

The cost differential is directly related to the quality and extensiveness of implementation.

Note that poverty law programs (e.g. working with the Legal Services Corporation, etc.) can use outside attorneys to supplement faculty (providing quasi-faculty who can fit the training niche).

5. Misc. Notes.

Possible areas of focus (some that the Law School does provide now):

"Normal"

a. Criminal Law. b. Family Law. c. Tort Litigation. d. Probate (the filing rather than the drafting end). e. Small Business Law. f. Negotiation (with an emphasis on drills. Practice. Practice. Practice. Not just a flash lecture). g. ADR as an advocate. (Advanced would be ADR as a Mediator or Arbitrator) h. Civil Appeals. i. Criminal Appeals. j. Federal Practice.

Note that it is very likely that no law school can cover every area.

"Other"

a. There should be at least one theoretical framework skills class offered (this is what the practice of law means, day-to-day, for the 70% or so of you who will go into practice in the small office/solo type practice that the other 30% of you will not see). [outlines provided below]

Currently this sort of thing is offered as a small office practice seminar outside of the school year. (Usually titled the Economics of Law or some such. It misses the essentials).

b. An oral advocacy skills class. (Which is what Woody Deem tried to provide, on the side. There should be at least one class focusing just on oral advocacy skills).

c. A written advocacy skills class. This would be a class on how to write clearly and persuasively. (All students should take one or the other of these classes, preferably both). Note that many classes should cover this subject matter as a part of what they are teaching.

6. Examples in practice.

The Tax classes taught by Professor Neeleman use a problem set approach that consolidates learning into application and preparation for duplication on the final.

It is a brilliant example of applying ASP methods to a large section class.

III.THEORETICAL GOALS MET.

First, students are taught better in their first year and learn important skills with a great deal less personal stress.

Second, students learn to apply their first year tools and skills to legal settings (e.g. their writing gets switched from legal study writing to legal scholar and practical lawyer writing -- the next important step since they _do_ plan to graduate!).

Third, students learn the material and skills they need to be able to practice law successfully in todays legal climate -- and have the chance to understand that climate -- something few, if any, currently do.

Fourth, students receive a vastly superior legal education.

IV. PRACTICAL GOALS MET

Students receive a superior legal education that will improve their employability, they quality of legal practice and the marketability of the law school to both students and employers.

V. AFTERTHOUGHTS

A. THE SMALL SECTION METHOD

Upon reflection, the small section method (for first year students) was a noble first attempt.

While implementing true ASP techniques in the small section classes might be a good idea, a more coherent and easily implemented strategy would be to teach an ASP style first year class -- preferably civil procedure or torts. (Which would mean that all students received the same training and experience -- something not true of the small section method -- with sometimes dramatic variances).

In the place of the small sections, moderated study groups would benefit students. Such study groups should be assigned (to make certain no one gets left out -- the most alienated students are the ones who need such groups the most and who are least likely to join one), but should also allow free switching between groups. (So that anyone who wanted to set up their own study group could).

In a normal graduate school one could have a faculty member assigned to spend hours each week with each study group. But then, a normal graduate school has one faculty member for every four students.

In a law school I think a goal of two half hour session a week (reviewing general ASP principles and providing some encouragement) with teaching assistants would be the most anyone could hope for.

That is thirty study groups (150/30) for thirty hours (30*2*.5hrs) of teaching assistant time each week.

Fortunately, the interactions would lend themselves to "canning" (i.e. prepared scripts and materials with a human face and human contact) and the use of co-faculty individuals (student aides, instructors, BYU professors, etc.) would control costs.

The study groups would reinforce the ASP oriented first year class, would make certain that all students were in study groups, and (to the extent that real faculty participated from time to time) would expose the faculty to ASP methods and to "real" students (the type that rarely have any extensive contact with faculty).

All in all, I think this is a model for what legal education should become.

B. ALTERNATE APPROACHES

Actually, I think that implementing the teaching assistant moderated study groups first and then an ASP methods main section class second is probably a better way to go. Set up all the difficult and expensive changes first, then the easier methods second.

Steve Marsh

Suggested Readings:

Mary E. Levin, Joel R. Levin, A Critical Examination of Academic Retention Programs for At-Risk Minority College Students, 32 Journal of College Student Development 323 (July 1991).

This essay distills out the importance of faculty/student involvement. The central components of effective teaching are:

1) Faculty Involvement (324); 2) Proactive Intervention (325) (i.e. first semester or before); 3) Small Group Tutorials (326) [note that small groups are more effective than one-on-one tutorials]; 4) Teaching Study and Test Taking Skills -- especially integrated programs where domain-specific skills are taught in conjunction with the courses the students are currently taking (327).(Compare with Hirchi's Cultural Illiteracy). It is important to note that studies have shown that the most prevalent method of note taking results in poorer content recall than does taking no notes at all (329).

NUTS AND BOLTS APPLICATIONS

This essay provides an overview of the AMASP methods program. Part of this is implemented by the law school, part of this is what students should do on their own to prepare for law school.

The complete method includes as follows:

(a) Providing students a simple preparatory core (used pre-law school).

(b) A two week introduction to law school.

(c) A first year ASP Methods Civil Procedures course.

(d) A second year nature of legal practice course (with orientation for the variations in legal practice).

(e) ASP methods used in second and third year courses.

(f) Practical skills seminars using ASP methods (outline, practice, review, implementation, use) with a focus on written skills.

I. PREPARATORY CORE

The following is a realistic preparatory core for an aspiring law student. It is different, to an extent, from the prepatory cores listed in most Law School categories.

A. GENERAL READING

1. Before the End of the Junior Year of College.

All prelaw students should be encouraged to read the following books on their own. They should have read them by the end of their Junior year in college.

Regardless of what you think of spoon fed simplifications and empathic tomes, these books are _honest_ stepping stones for understanding and learning law and reading them provides a background exposure that will make later reading more productive.

a. David H. Barber, Nature of Legal Thinking.

b. "Nutshells" for Constitutional Law, Property Law, Criminal Law, Civil Procedure, Torts, Contracts.

At The end of the Senior Year of College -- But before July.

The following should be reviewed (i.e. outlines read, chapter heads skimmed, and then the volume read lightly, without forcing any focus or understanding):

Gilberts for Property Law, Criminal Law, Civil Procedure, Torts, Contracts.

Not to be read.

Case notes, LegalLines.

B. COURSE WORK

There is specific course work that will help a pre-law student do better in law school.

Rather than the "traditional" pre-law course work, a prospective law student should have exposure to classes that teach logic and writing skills, as well as some other selected basic survival skills.

1. Writing Classes.

a. English. The goal in writing classes is to take classes that teach students to write and the focus is on classes that require students to write again, and again, and again. Technical Writing For rigor Fiction Writing For technique

b. Journalism. The goal of taking journalism classes is to learn to write quickly, under a deadline, in a clear, readable style.

Any class with a significant writing requirement

2. Logic Classes.

a. Philosophy. Beginning Logic Intermediate Logic Philosophy of Language

b. Basic (Business) Law. This exposes the student to a bit of the nature of law. The more of these classes a student can take, the better they will be pre-exposed to the substance of the law and the language of the law.

3. Other Classes.

a. Speech. Expository Speech.

b. Typing, secretarial. The goal of learning to type as a secretary, instead of some "college prep" or "professional" typing class, is to teach you pure speed and skill.

The rest is all gloss. A typing class is preferably taken in high school and will separate the sheep from the goats when they are trying to get all their thoughts on paper in the scope of a three hour exam.

c. Basic Word Processing. Word processing is an essential skill for anyone who plans to write. A Windows Word Processor (i.e. WordPerfect, Word for Windows or Ami Pro/Write Pro).

C. BENEFIT

Properly prepared students will suffer less stress and will learn with better focus in law school.

Further, if they have learned essential skills prior to law school, they will not need to learn them in law school.

II. TWO WEEK INTRODUCTION

This is a variation on the one day to one week introductory or orientation class common to most law schools. It provides a substantial bridge to law school and is important to a successful transition from being a respected, successful undergraduate to being just one of 150 law students.

A. WEEK ONE -- METHODS

Week one is a relatively relaxed week, with week two picking up the pace and warning the students what to expect when "real" classes start.

1a. Day One, morning session.

This day begins with a warning that learning law is first, and foremost, learning a foreign language with its own grammar, logic, pronunciations and vocabulary.

The basics are sketched out.

This session provides a metaphor and an initial framework for law as a foreign language.

1b. Day one, afternoon session.

This period is used for introductions, study group assignments, physical plant familiarization, faculty descriptions, excerpts from the schools informal newspaper, etc. Assignments for day two and an outline for the week are distributed.

2. Day two to five. Perspective.

The next four days are spent in a "normal" orientation class mode with the normal practice and exposure to law school technique.

The purpose of this is to allow students to appreciate just what they are getting into and to provide them with a framework of why they need the specifics and what they are applying the specifics to.

B. WEEK TWO -- SPECIFICS

This consists of a week of drills and exercises.

Note. While intelligent, bright and motivated students can grasp a concept lightly brushed over for them, studies have shown that they are aided by drills and practice and learn better with drills and practice just as any other learning level of students. Assuming that we want students to learn the methods and be able to apply them, it is important to provide substantial drill times rather than just glossing over the concepts.

1. Day One.

Students practice reading a case three times and reading the case on three levels.

Briefing skills are reviewed again as are the prior weeks lessons.

2. Day Two.

Students are taught the four major methods of taking notes and are oriented to understand that the most prevalent method is _worse_ than taking no notes and that some of the other methods are more efficient than others.

Students then do note taking drills.

3. Day Three.

Students are exposed to proper time management skills. The morning is spent on drills for evaluating time needed to prepare for classes, on pacing and related principles. The students should be far enough into the law school experience to appreciate the need they have for time management considerations.

Also, a brief drill practicing reading and briefing a case on three levels.

The afternoon is spent on stress reduction techniques (the importance of regular patterns of sleep, diet and aerobic exercise in dealing with stress) and planning.

4. Day Four.

Introduction to outlining and flow-charting skills in the morning. Repeat facility orientation tours and study group assignments.

Practice, apply and refresh note-taking skills in the afternoon.

5. Day Five.

Reprise briefing and reading skills. Review and drill.

Afternoon time period is taken off.

C. BENEFIT OF PROGRAM

The majority of the benefit of such programs is in increased retention (fewer students drop out) and reduced student stress. These programs greatly increase student satisfaction (completely out of proportion to the program's academic benefit).

The essential message of the class should be you are very likely to succeed here and we're here to make success even more likely.

The secondary benefit is that the class exposes students to techniques that they will be applying throughout the semester in the context of substantive classes and should improve student efficiency.

III. CIVIL PROCEDURE

Methods and skills are learned best when combined with substantive learning. Thus the AMASP method applies the initial skills in the context of a traditional first year class.

A. THE APPLICATION

A three semester hour AMASP class meets for four classroom periods each week. Three are modified lecture (using ASP methods to lecture rather than traditional ones, and with illustrations of ASP in practice) and the fourth includes weekly review (with an emphasis on the theory of learning) and writing assignments and review (application).

The usual schedule would be MTW and F with a writing assignment on Wednesday and review and response on Friday.

--Note, there is also an ASP methods Criminal Law program in use at a model institution. It will be provided in the Critical Syllabus to the extent I am able to obtain a copy. Other universities have ASP method Property classes.

B. BENEFIT

Students who take the UCLA ASP method Property class demonstrate a 4 to 5 percentage point increase in grades. With adjustment for norming, that translates to a 2 to 3 point increase (e.g. from 72 to 75) with the improvement showing the strongest impact in the long run (vs. the short term, single semester or less impact of many programs such as CLEO).

That is a direct, measurable, across the board improvement in the quality of education. Further, such students almost doubled their bar passage rate (from the 40%s to the 70%s). Even after adjustment for statistical trends, the approach reflects substantial improvement in learning skills and abilities.

IV. SMALL GROUPS

Study groups are the core of retention for a learning program.

A. ASSIGNED GROUPS

Five students are assigned to each group and oriented to them during the orientation period.

For a class of 150 students that is thirty groups. Each is assigned two one hour blocks each week in a study area. (Assignments may be switched or modified as long as the assigned teaching assistants are able to agree).

Acceptable supplemental texts for assigned groups would include Gilberts, LegalLines (for the appropriate text books), ASP materials, etc. Banned Texts: case notes of any type or brand. Case notes hinder learning.

B. REMEDIAL GROUPS

McKinney model remedial groups start the second semester of law school and provide for specialized (academic) support. They are intended to supplement, not replace, the assigned groups and are aimed at aiding at risk students.

1. Week One Introduction and Norm Setting Adjusting Our Attitudes (meet upper class students who have gone through process).

2. Week Two Managing Your time Thinking Like a Lawyer (read actual appellate briefs)

3. Week Three More Thinking Like a Lawyer (Keys to writing good exams) Examining Exams (Looking at actual 'A' answers from some exams).

4. Week Four Writing Exams (Practice Session) Graduation and Review

A full five week program is included in the critical syllabus.

C. BENEFIT

In a survey of students in academic support classes, 100% of those surveyed were revealed to be "solitary learners" -- i.e. persons not in study groups. The major indicator of alienation and the need for ASP intervention is failure to find a study group.

This program uses assigned study groups to proactively pre-empt the creation of solitary students. Further, the McKinney method appears to provide emotional and contextual support in a more effective manner than one-on-one counselling.

V. NATURE OF LEGAL PRACTICE CLASS

This is a seminar/class that provides orientation information for legal practice much like the introductory class oriented students to law school. Orientation is essential to a student's ability to thrive rather than flounder after graduation.

In surviving legal practice, this class is just as important for soon to graduate students as the ASP methods and orientation class is for incoming law students.

There should be three separate seminars offered, each with a different orientation, depending on the student's (grades) orientation.

A. SMALL FIRM/SOLO ORIENTATION

This section focuses on the framework under which 60% to 75% of all graduates will practice.

Textbooks:

Jay G. Foonberg, How to Start and Build A Law Practice, ABA Section of Law Practice Management.

This book covers all of the information necessary to understanding the mechanics of small offices.

Joel P. Bennett, Flying Solo, ABA Section of Law Practice Management.

Somewhat fuzzy, this book, especially the second edition, provides perspective as to why small practice might be chosen by some lawyers. It may be thrust upon 60% of the class, but small office practice is not necessarily something to fear or avoid.

Suzette Haden Elgin, You Can't Say That to Me, Genderspeak.

Two excellent books. The first deals with verbal violence. The second covers a great deal more than gender and explains the rules of the verbal game.

Ataraxis, Collected Essays.

These essays, used in some years as exit materials, provide a grounding in reality for the students in the class. They fill in the human factor.

The class reads Foonberg to obtain nuts and bolts information. Flying Solo is read and discussed to reduce stress. Elgin provides necessary verbal skills (there is a great deal of verbal violence in small offices) and drills. The Collected Essays (Life as an associate, etc.) tie it all together with reality and finish the class.

The four authors used for the class provide four radically different approaches to looking at a small office. Knowing what goes into each of the four views is important for functioning in the environment.

B. CLASSIC FIRM ORIENTATION

This section focuses on what 100% of incoming law students think they are going to experience.

Textbooks:

Robert M. Greene, Making Partner 101, ABA Section of Law Practice Management.

This book is amazingly good in the way it covers the basics. It skips a few points [but, the Rodent, below, covers those].

Heidi L. McNeil, Changing Jobs.

This is a very well thought out and straightforward text. It does illustrate just how difficult the employment market is for everyone and just what it takes.

Theda C. Snyder, Women Rainmakers' 101 Best Marketing Tips, ABA Section of Law Practice Management.

The only true large firm security comes from being a rainmaker.

Magness & Wehmann, Your New Lawyer, ABA Section of Law Practice Management.

Very useful for discussion purposes, it illustrates just how lawyers in the firm view and deal with associates.

The Rodent, Collected Essays.

Everything that isn't polite or appropriate to mention in a "highbrow" ABA publication -- but that you need to know anyway!

This seminar is taught on the instructional mode from Greene's text, then moves on to discussion using Magness & Wehmann and then Q&A from The Rodent's essays. (Yes. It really is like that).

Snyder and McNeil finish the class up with review oriented discussion/lectures (covering the material so that the student can recall and relearn it later when they need it).

C. GOVERNMENT SERVICE

More and more students go to law school who plan on entering civil service jobs -- because law school as an experience is a substantial advantage.

In addition, there are prosecutors, regulators, and similar government agency jobs.

A seminar preparing students for this type of career should be offered every other year or so (depending on demand).

Unlike the other courses, this one should also expose students to several practice civil service style exams.

D. BENEFIT

This course is part of the ASP equivalent for preparing to practice law. Note that the syllabus contains a course outline for a simpler approach to the same materials and information.

VI. PRACTICAL SKILLS TRAINING

This type of training is essential to all students who go into small office practice and should be required of all non-co-curricular students who are not on track for civil service employment.

All such programs (except for oral skills training and ADR) should require weekly writing assignments, review and practice. Mainstream courses should implement weekly writing practice to the extent appropriate or possible (providing practical skills training and ASP methodology).

The number of such seminar courses and opportunities, including clinical setting practicums and such, is limited by the financial and staffing limits of a school.

Ideally, each student should take at least two basic legal practice classes and one advanced legal practice class. They should take at least six classes with a substantial writing requirement.

VII. TEACHING ASSISTANTS

Teaching assistants are generally useless.

A. THE PROGRAM

Unless.

Unless they teach students how to learn, provide moral support, do not make mistakes on the substance of the law and do not cause students to over-focus on one class (at the expense of other classes).

In model ASP program the teaching assistants are used for the first year core curriculum. They focus on learning and applying learning methods to the coursework. They acknowledge and may use commercial products (with the focus on using them to review after lectures rather than before or instead of lectures).

Thus the TAs aid students to focus on how to learn properly.

B. BENEFIT

Teaching assistants provide the following benefits:

a) They enforce the existence and use of study groups.

b) They aid in focusing on learning methods and techniques.

c) They help students stay on track in what they learn.

d) They provide social, emotional and academic support (ideal message to students: "I'm here to make sure you succeed").

e) They strengthen the credibility of the program (ideal message to students: "Yes, this really is valuable and really does work.").

NOTE. In this model, the teaching assistants participate to strengthen the program and to reduce faculty work-load and are the least important part of making the ASP approach work from an academic viewpoint.

They are very important for reducing stress and concern and for tracking integration of learning skills with course materials.

They are also very important in aiding students to improve and strengthen social skills.

VIII. THE NET RESULT

The following results will follow from the implementation of these programs and approaches:

First, students will learn more. They will learn both how to learn better and will learn more law with better understanding by learning better.

Second, the environment will be much less hostile and stressful for students. There should be a substantial improvement in the school's ability to retain minority and other alienated admissions.

Third, students will be much better prepared for the practice of law upon graduation.

I personally think that the differences will be noticeable and substantial. It should be enough to reflect statistical differences in bar passage rates and in employability (and other long term successes) of graduates after a period of five to seven years.

What Woody Deem attempted to do when teaching criminal law and with his criminal law practice seminars, this program attempts to do for the entire law school population.

Suggested Readings:

Levin & Levin, A Critical Examination of Academic Retention Programs, 32 Journal of College Student Development 323 (July 1991).

Principles: a) program should begin during first term or before. b) small group tutorial and study is superior to one-on-one programs. c) teaching of skills must take place in context of actual courses. d) student's basic skills (including writing) should be developed. e) instructional skill/quality is important.

Ruth Ann McKinney, Using Small Groups to Solve Big Problems, 2 The Learning Curve 7 (December 1994). Professor McKinney's approach is as close to perfect as I've found and is well worth copying (it is the model for the second semester support group format in these essays. Honestly reflected, I was unable to improve on her model.).

Five Principles: a) small groups are much more effective than individual, one-on-one. confidentiality, mutual respect, commitment to others and to preparation. b) be clear on your goals: use groups to provide emotional support teach how to set and reach realistic goals gain insight into the learning process create friendships & share peer experiences c) the "adult" (faculty member/ teaching assistant) must always remember to be in charge. d) delegate responsibilities, but have a set agenda. e) protect the environment no more than ten members, no less than five, (7 to 9 is best) privacy choose participants in each group wisely.

Referred to Janet Mancini Billson, The College Classroom as a Small Group: Some Implications for Teaching and Learning, 14 Teaching Sociology, 143 (July 1986) and Carl R. Rogers, On Becoming a Person (Book 1961).

Charles Richard Calleros, Variations on the Problem Method in First-Year and Upper-Division Classes, 20 University of San Francisco Law Review 455 (Spring 1986).

The SALT Equalizer (Newsletter of Society of American Law Teachers),

Harcourt Brace Jovanovich, 1-800-787-8717 (for direct purchase of Gilberts and Legal Lines materials).

Sandra Anderson Garcia and Katurah Presley, An Assessment and Evaluation Program for Black University Students in Academic Jeopardy: A Descriptive Analysis, 9 Journal of Community Psychology 67 (1981).

This paper illustrates solid methodology for confirming and considering pragmatic and realistic methods.

APPENDIXES AND NOTES

FORWARD TO THE APPENDIXES AND NOTES

This collection of essays is a long step from CRITICAL REFORM OF LEGAL EDUCATION -- THREE ESSAYS.

The Real Problem with Legal Education, covered too much ground, and concluded only that "Law Schools need more faculty" in order to teach better. The Real Problems with Legal Practice, pushed past the limits of what can be done in the real world in order to illustrate some points relating to the need for students to learn how to write. The Modern Conflict, discussed the current thrust of reform and the dynamic that drives that thrust. That essay pointed at some reforms that are were possible and that would aid the majority of law students, but that did not connect to specifics of implementation.

That essay series also used the presentation method as an excuse to present the last essay twice, with perspective material provided between presentations, and with the conclusion of the duplicated essay deferred until the second presentation of the essay's concepts.

Nothing in the Critical Reform essays approached the nuts and bolts of implementation within the framework of changing things one law school at a time. The essays really provided a general, almost oral logic approach to the problems and issues with an outside, legislative style resolution.

PRAGMATIC REFORM OF LEGAL EDUCATION -- THREE ESSAYS suggests a direct, one law school at a time approach that can be used all, or in part, and experimented with or ignored at leisure and without regard to any external pressure or entity.

The Appendixes include:

SYLLABUS OUTLINE (for the available Critical Syllabus). UNVARNISHED INSIGHTS (misc. comments on the legal education process).

OUTLINE OF CRITICAL SYLLABUS

INTRODUCTION

A Critical Syllabus is a collection of all the source essays necessary to critically analyze a position. The critical syllabus for these essays contains all of the source essays necessary to evaluate and critically analyze my proposals for pragmatic reform of legal education. Copies are available from Assistant Dean Kathy Pullins, 339 JRCB, Provo, Utah 84602.

VOLUME ONE

Table of Contents

Introduction and Summary

A. Stephen R. Marsh, Pragmatic Reform of Legal Education -- Three Essays (1995).

B. The SALT Equalizer, April 1994.

C. The Law Teacher, Spring 1994.

D. Touro College Teaching Assistant Materials.

E. Cathaleen A. Roach Problem Set.

F. Charles Richard Calleros, Variations on the Problem Method in First-Year and Upper-Division Classes, 20 University of San Francisco Law Review 455 (Spring 1986).

G. Editor Kristine Knapland, The Learning Curve, Vol. 1, Issue 1 to Vol. 2, Issue 1.

H. Cathaleen A. Roach, A River Runs Through It, 36 Arizona Law Review 667 (1994).

VOLUME TWO

I. Mary E. Levin and Joel R. Levin, A Critical Examination of Academic Retention Programs, 32 Journal of College Student Development 323 (July 1991).

J. Sandra Anderson Garcia and Katurah Presley, An Assessment and Evaluation Program for Black University Students in Academic Jeopardy: A Descriptive Analysis, 9 Journal of Community Psychology 67 (1981).

K. McKinney Academic Support Method Materials (Complete Syllabus, Course Outline, Materials).

L. First Year Law Study ... a survival manual, Harcourt Brace Jovanovich.

VOLUME THREE

M. Kristine Knapland and Richard H. Sander, The Art and Science of Academic Support, Journal of Legal Education Vol 45, No. 2 (June 1995), 157-234, especially 225-234.

N. Stephen R. Marsh, Critical Reform of Legal Education, Three Essays (1995).

O. Suzette Haden Elgin, Uphill All The Way -- Persuasion in Adverse Circumstances, reprinted by express permission. [includes resource ordering information, in duplicate].

P. Julie M. Cheslik, Teaching Assistants: A Study of Their Use in Law School Research and Writing Programs, Journal of Legal Education, Vol. 44, No. 3 (September 1994).

Q. J. M. Feinman, Teaching Assistants, 41 Journal of Legal Education 269-287 (1991).; see also Why Law Teachers Should Teach Undergraduates. Feinman includes two outlines.

R. Proper Considerations, 1995 edition, etc.

S. Class Outline and Syllabus, Orientation to Legal Practice.

VOLUME FOUR

T. Paula Lustbader, Seattle University School of Law Syllabus. (with notes).

VOLUME FIVE

U.

V.

W.

X.

Y.

Z.

The following essays are short bits from law students, lawyers and others that touch on various issues relating to the legal education process. Not necessarily focused, civil or right, but providing some perspectives. I've titled this collection of essays "Unvarnished Insights."

UNVARNISHED INSIGHTS

One, Steve Marsh, On Total Quality Management and Law School.

Applying Total Quality Management tools (TQM) to law school should mean looking to non-law school instruction and scholastic methods for improvement, not merely copying other "best of breed" law schools.

Everyone in the legal academic world already copies the "best of breed." There is not any more room left in that direction.

TQM, if it is to be more than just a buzz word, should mean a legitimate and intelligent survey of educational methods and success.

And it should also include respect for law schools as they are now. Some of the appendix essays are caustic, but the truth is more than just reactive anger and criticism. It should include a realization that there are many people honestly trying to do their best and an appreciation of those efforts, while looking for ways to build on them and go beyond. Respect for the past as a foundation for the future is part of what true TQM means.

Two, Law Professor David Barber, Alumni Reactions.

Law school is a very hostile experience. Studies have shown that it takes the average law school graduate seven years before they are willing to participate in Alumni related activities (such as fund raising, etc.).

Three, Unattributed, Arrogance.

I never understood why doctors are so arrogant until I studied critical path theory and medicine. It turns out, by analyzing what works in medicine and what does not, modern health organizations are increasing the success rates of treatment and dramatically reducing costs. In one study, of twenty treatment protocols studied, seventeen were "non-therapeutic" and one was useful. Two were possibly useful.

(In case you are wondering, the studies have revealed that doctors harmed more people than they helped until 1987. If you had a "random" need for medical care, statistically you were better off avoiding doctors and their help until 1987).

In order for medical doctors to sustain their standard of living, they have had to harm millions of people more than they helped them, for generations and generations.

The only way you can keep harming people (on the average), day in and day out, is to displace some and to develop an incredible level of arrogance. Which is why doctors blame all mistakes on nurses (who have been a net improvement in health since the profession started), treat patients like dirt, and isolate themselves.

But, one group is even worse than doctors. That group is law professors. Just like the doctors, the profs know, or should know, that the methods they use to teach actually make it harder to learn the material.

That is, law professors provide a net negative input into the learning process.

Is it any wonder that some professors have developed an incredible level of arrogance, have displaced themselves, and treat the students and support faculty like dirt, isolating themselves from all others.

Four, Unattributed, The Real Instruction.

The real teaching in many law schools is done by Professor Gilbert and his associates. There is no need to wonder why.

I've known a lot of kids who understood the subjects they were studying as long as they read their Gilberts. When they went to class, they got confused. It was the confusion that drove them to academic assistance.

Had the poor kids just stuck with Gilberts and Legal Lines, they would never have gotten confused by listening to the teachers. We even had a kid in my class, who graduated Order of the Coif, who avoided classes his last two years (he stuck with Gilberts and basketball) to avoid being confused by the professors. He felt that they got in the way of learning.

His grades went up dramatically when he stopped going to class. As long as he avoided class, his grades and understanding stayed up.

Didn't put it into perspective until I talked with a friend who had severe trouble one semester. He had a heart attack and some other things, so he skipped the lectures in corporations and just used the study guides. While the professor was famous for having the hardest classes in the law school, my friend had his highest grade on that final.

It fits with the observations of a PhD in philosophy who had a carrel next to mine. He skipped all of his classes from the first semester on. He had a full time job driving a wrecker truck (which is where a philosophy PhD will get you -- and why he was going to law school). His grades were solid and he really thought that the material being studied in law school wasn't that hard.

He didn't see much value in the classes (he went to a few one semester), so he quit going. Just took finals and worked full time to support his wife and kids.

Law school has a real problem brewing. Someone is going to start a summer camp for prospective law students. They will teach them:

(a) how to study; (b) how to write law exams; and, (c) to avoid paying attention to lectures.

The kids who use that method are going to be reliable top third law students. Which is the kind of thing that illustrates that the emperor has no clothes.

Five, Unattributed, Comments on Out of Touch Professors.

Speaking of feedback ... I took a class team taught by a Law Professor and an Economist. The idiot PhD kept swapping the words elastic and inelastic (which is like switching open for closed). That is a verbal slip common to Econ professors.

I just filtered it out (which I had learned to do in my undergraduate classes) and did not even notice it until another student finally asked me how I could make any sense of what was going on in class. After I explained to him what was happening, the problem continued. I do not know of anyone who felt comfortable enough with the teaching faculty to tell them what they were doing and the impact it was having.

Only those who ignored the Econ guy understood the material in that section. (a number of the students did just that, concluding that the economics either did not make sense or wasn't worth any effort).

That incident came to mind thinking of what you had said. In an undergraduate setting the problem would have been made clear rather quickly. In a law school, the faculty were completely oblivious to what was happening and the students who understood did not feel comfortable enough to enlighten them.

Don't pass that story around. The individuals involved would just feel that they were being attacked. But consider how it illustrates the lack of connection between students and instructors.

Six, Unattributed, Grades

I'll never forget the time I made the mistake of going over an exam with a professor. I'd made a mistake about a fact on the exam. As a result, I had a string of springing interests, etc., all off. Luckily (I thought), I had restated the facts so that my mistake was obvious. On the facts I had restated, I had a perfect analysis.

The professor, who must have stated at least once a week that we were graded on our analysis -- not our answers -- used a matrix. All he looked for was the right answer. He noted that my analysis was perfect

Seven, Trying to Find a Job, Looking at Harvard

I found a Wall Street Journal Article analyzing how bad things were for the Harvard Law School class of '85 at their ten year reunion. Things are worse for the rest of us.

The perspective began with the 1980 class of Harvard which made it to partnership before the recession. Starting with the '81 class things started to fall apart. By 1985 (the latest 10 year reunion class and the focus of the article) things were really bad. By 1990 (the current 5 year reunion class) things had been bad enough that expectations were dramatically changed. At Harvard, at least, kids now expect not to make partner in ten years, permanent associate status, several job changes and that firms will dissolve and reorganize regularly.

The amazing thing is that analysts uniformly predicted many of the things the representative class of '85 experienced. The National Law Journal and other industry newspapers and magazines clearly laid out, in 80 and 81, what was coming. But students did not expect what happened. They were mislead.

By who? Who mislead students -- the faculty at most law schools. They were the only group out of touch enough to tell students to ignore all the indicators and warnings -- they were the ones who missed the trend everyone else noted as so obvious that there was no substantial written dissent. If you read the articles, considered and then brought it up with a faculty member, you could count on getting advice that was 180o wrong. Faculty told students everywhere (not just Harvard) "don't worry, be happy." Makes me worry when I hear students talking to faculty about career advice.

Eight, Unattributed, Honesty with Students

I see a lot of student life people talking about educating students to alternatives to "traditional" (i.e. larger firm) legal practice. Things you can do with a law degree.

You know, civil service, teaching high school, going into busines, that sort of thing.

I really want to know why the law school did not tell the entire bottom two thirds of our first year class to just drop out of law school and enroll in a P.A. [Physician's Assistant] program.

P.A.s have a great deal of autonomy, are respected as professionals, start at $50,000.00 to $60,000.00 a year and make up to $250,000.00 a year or more.

All it takes to become a P.A. is twenty-seven semester hours spread over two years (including the clinicals and work experience). Then you can write perscriptions and earn a good, solid, dependable living with a great deal of self respect and autonomy -- even if you are at the bottom of the class.

If I had dropped out of law school at the end of my first semester and begun applying to P.A. programs, I'd be living a far better life than I have now.

More money. More stability. More respect. Sure, some graduates make it even if they are in the bottom half. But then, some P.A.s make it big too. If I had dropped out, I would have graduated at the same time.

Now I've exausted my access to student loans. I'm too old to go back to school. I have a house full of children and a mortgage and car payments. But being a P.A. sure beats the averages of everyone who wasn't in the top third of the class.

///////

That comment is a little dis-jointed, but it makes much the same point I've made to several friends who were applying to law school. I told them that _if_ what they wanted was professional success, they needed to apply to, and attend, the worst law school they could stomach.

After all, the top 10%/law review at [hmm. I'd better not name the institution, but it is one of several in U.S. News & World Reports bottom decile] do better professionally than the bottom half does at Yale. Having reviewed the numbers, I can't imagine that anyone in the bottom half of Yale would not be in the top 10% at [].

I've advised people to consider looking at their first semester grades and if the grades aren't good, dropping out of their first or second decile law school and attending []. They would have just enough time to apply, be accepted and start over. They might lose a year of practice, but they would make up the financial difference within a space of a few months to a couple years.

If kids were properly prepared, I don't see how upper tier law schools could keep their bottom third to bottom two-thirds of the class in the face of the alternatives. Few have any concrete idea of what the practice of law is really about. They want autonomy, relatively good income and stability. Kids in law school don't want two and a half more years of a deeply hostile environment followed by a desperate (and often futile) search for employment at starvation wages.

Nine, Steve Marsh, Summarizing the Essentials in the Syllabus.

There are three essential parts of the syllabus, each noted in bold face. They are the works by Professors Roach, Knapland and Lustbader.

It is impressive to read Professor Cathaleen Roach's essay. It is the scientific method applied to law school. Better, everything that she recounts from pedagogic theory is born out in the statistics compiled by Professor Knapland and analyzed in her essay.

After reading those two essays, you can see how Professor Paula Lustbader put together a program that meets Roach's pedagogic requirements and fits the model verified by Knapland's statistics. All three subsume, with greater depth, the rules and concepts behind Hirchi's core knowledge concepts -- that students learn "learning skills" best in the context of substantive education.

Realizing that Professor Lustbader's material and approach date back to 1990 and before, it is impressive that she was able to break through the haze and derive the essential first principles with such accuracy and without years of application following Roach (1994) and Knapland (1995).

I am grateful for her willingness to share a copy of her work for the syllabus and consider her program a work of intuitive genius.

Ten, Mark Marsh, Questions

Steve, does this approach affect tangibles?

--Yes. It has a direct impact on things like bar passage rates (e.g. Knapland's 40ish to 70ish pass rate change) and employability.

Why shouldn't the bottom part of a law school class drop out and look for something else? Do they?

--I don't have a response to that. I know that MBA programs have substantial class status attrition (people who aren't flunking out, but who opt for something else when they are not happy with their grades). I don't know.

Can you do anything about law firms who keep trying to send law clerks and associates along to hearings and depositions and then who want to bill us for that time along with the lawyer's time who actually did the work?

--No. I've read a lot about the building billing resistance of businesses. You are normal in not wanting to pay for the time a law firm spends training its associates and for the leveraged income those associates are creating while being trained. Should be an interesting trend to track as the oversupply of lawyers grows.

Copyright 1996 Stephen R. Marsh
All Rights Reserved
Return to Central Index 
for Reform of Legal Education and the Law

Mediation Bulletin Board Link
Link to Dispute Resolution Related Book Reviews


Copyright 1998 Stephen R. Marsh

adrr.com [home]

Mediation Essays

Mediation Topics

Mediation Centers

Advanced Topics

Bulletin Board

ADR Links

More ADR Links

Newsletters

E-Mail to Author

Author's Home Page

Search the Site