Two to Scorn for the Price of One

First up in the "individuals deserving of my scorn" today is Ann Levine. If you recall, I've previously called Ann out for making up bogus and contradictory reasons to attend law school and for not reading or understanding what she cites to in order to support her commentary. So imagine my surprise when I ran across this article today where she does almost the exact same thing.

It's a well-intentioned piece about teaching students how to write a good personal statement. But what jumped out at me was this paragraph:

Q: I should start with something really dramatic.

A: Please don't. Lawyers don't write that way. You should worry less about shocking the reader and more about quickly piquing the reader's interest. Berkeley Law just posted a great example of what admissions committee members really think when you start your personal statement with a melodramatic tale. This is a must-read no matter where you are applying. Rather than trying to seek an emotional reaction, begin your personal statement with something honest and insightful.

If you actually read the article she links to, it says this:

It is very clear that many applicants have been coached by someone that this is how to write a compelling personal statement...This format is transparently manipulative, formulaic, and coached. Except for the occasional novelist we admit, none of our students or graduates is going to write in this style again; none, thank goodness, is going to begin a brief with, “He stood frozen in fear as the gunman appeared out of the darkness.” So, this artifice is irrelevant to law and counter-productive: Once it ceases to surprise – and it did so more than 10 years ago – it just becomes a cliché which really ought to be held against the writer. Not only using clichés, but also having been coached ought to, in an ideal world, discount an application. . . . [I]t is transparent when essay formulas have been coached, and we (should) strongly advise applicants to write in their own voice and style and without trying to dramatize what they have to say in order to attract our attention." (emphasis removed from original and added back where I see fit).

I have multiple problems with these excerpts. First, it would greatly help everyone if we were all honest and just admitted up front that personal statements are like exhibition games. You do it, but it doesn't really matter, and in the end it's your LSAT and GPA that get you places. A great personal statement really isn't going to save your 151 LSAT score unless you put it in an envelope with three-years tuition in advance.

Second, one of my pet peeves in writing is when people don't use consistent terminology. It's critical in legal writing to keep precise terms and know exactly what you're talking about. Here, the original piece is criticizing "cliched," "formulaic," "transparently manipulative" writing. By the time it got to Ann Levine's desk, it was transformed into "dramatic" and "melodramatic" and she tells you to be "honest and insightful." The Berkeley article addresses style, trying to get people to write in their own voice. Ann's mangling of the terms made it a content-based directive; instead of not "dramatizing," students are advised to avoid "drama" altogether. Those aren't the same thing.

Third, I have a major problem with both articles confusing the quality of the writing with the form the writing appears in. The problem with the examples the Berkeley piece provides isn't that they're "novel"-like or that they're dramatic, but that they're just flat-out lousy writing. Not all dramatic writing is bad, even in a legal context. A brief on the right subject matter can be both very effective and dramatic. But they're examples of good writing first. Take this opening of the summary from Paul Smith's Lawrence v. Texas brief:

As the experience of Lawrence and Garner vividly illustrates, Section 21.06 puts the State of Texas inside its citizens' homes, policing the details of their most intimate and private physical behavior and dictating with whom they may share a profound part of adulthood.

Don't you think that's trying to get an "emotional reaction?" That's more dramatic than it has to be, but it's effective, unlike the crappy writing styles that most nearly-illiterate law school applicants believe to be "good." You obviously can't do that with, say, arcane ERISA interpretations or in traffic court, but knowing how to phrase dramatic happenings within good, non-melodramatic writing is a very helpful skill in many areas of law. And being dramatic is the bread and butter of many trial attorneys.

But the biggest problem is what I've bolded above. In looking at said paragraph, it's impossible not to get the message that they hate when it's transparent that students are "coached." There is no way around the fact that Ann Levine is a law school "coach." The end message should be that they want to hear students' own voices and not something that has had the life sucked out of it by someone telling them what to write and how to write it, kind of like what Ann Levine does.

It's blatantly against her niche profession and yet she links to it as if she's above being a "coach," or perhaps maybe she just thinks her readers are dumb, or perhaps maybe she didn't comprehend the point. I don't think either is a great advertisement for her services.

---------------------------------------------------------

Second on my scorn list is this 38-year old doofus from the Charleston School of Law who put up 1,550 hours of "public service" at the local solicitor general's office and is now taking praise for it.

Kaufman, who earned a bachelor's degree in history from the University of Wisconsin Oshkosh, worked as an on-air radio personality for 14 years before deciding to enroll in law school.

It was in that career where he got his first experience with public service work, he said. His station sponsored an on-air campaign that quickly brought in $50,000 for a young woman who needed a liver transplant. "It was the most rewarding thing I've ever done," he said.

If he had done 1,550 hour of "public service" by actually helping people who need liver transplants, I would be all for it, and I would join the chorus of praise. But 1,550 hours for free at the local courthouse? That's 3/4 a work year they could have paid any number of people who are unemployed. Why, exactly, am I supposed to be happy about this?

I stand by my view that doing extensive pro bono work demeans the profession as a whole. Legal work is a valuable service

Law School Efficiency: the Socratic Method and Completely Irrational Beliefs

Being a good little legal writer, I'm going to follow the CRACK format* for this entry and begin with the conclusion: law school classes are horribly efficient and do not cause people to "think like a lawyer" (which is, itself, an absurd phrase) any more than possible alternatives.

This conclusion should seem obvious, but legal educators continue to brag about their educational techniques as if Pierson v. Post and the Socratic Method are some sort of gatekeepers to being Perry Mason.

Take this typical bucket of hogwash from our friends at the Laverne College of Law (wherever the hell that is):

The true work of a lawyer isn’t memorizing laws, but rather understanding legal principles and how to apply them to a wide range of different factual situations. This ability is called “thinking like a lawyer,” and it is perhaps the most important thing you will learn in law school.

'The Socratic method challenges me to deepen my understanding of legal concepts and develop my legal analysis,' current University of La Verne College of Law student, Shannon Shafron-Perez, shares. 'By engaging in discussions with professors who bring a wealth of knowledge and experience to the conversation, I have gained insight into concepts that would otherwise not be available in the traditional lecture environment.'
...
Law professors use the Socratic Method to help students learn to tease out the reasoning and legal principles that went into a given judicial decision and also to make educated arguments about how that reasoning and those principles would apply if the facts were different.

What utter dribble.

Like I've said many, for a profession ostensibly based in rationality, law has a horrible track record of basing its beliefs on irrational or unproven premises. There is not one shred of empirical evidence that the law school-style Socratic Method (a random, bank-and-forth unprepared question and answer session with a student) and emphasis on casebooks produces people who "think like lawyers." Not one.

In scientific study, rule number one regarding causation is that correlation does not imply causation. Rule number two regarding causation is to always consider alternative causal forces. As philosophers like Popper and Mill showed, causation is incredibly hard to prove.

So when you hear a Law School administrator showering plaudits upon the Socratic Method for how it makes people think like lawyers, or that it's a superior method of pedagogy, the alarm bells of skepticism (ones every lawyer - hell, every educated person - should have) should sound. First, something else may be causing law students to "think like lawyers." Second, where superiority is argued, there may be an alternative to the Socratic Method that may be more efficient in causing the observed phenomenon.

Perhaps a hypothetical would help illustrate what I mean: Let's suppose you have a 1L Property Law class of 60 students. Your topic is easements implied by prior use. You have 30 minutes of in-class time and 30 minutes of out-of-class time to work with. For concreteness, let's say the law school is in Illinois.

You have two options on how to allocate the time:

1. The Traditional Law School Method: Have the students read 10-15 pages of turgid casebook text that may or may not fully explain things, including one case from New York that involved prior use easements from the 1970s. Use the in-class time to work a modified Socratic Method on 2-3 students which discusses the facts and reasoning of the New York case and some hypotheticals to flesh out variations.
2. My Proposed Alternative: Have the students read (a) Dudley v. Neteler, 392 Ill.App.3d 140, an illustrative, memorable, on-point 2009 case from the state where we sit and (b) Am. Jur. 2d's brief section on implied easements. The first few minutes of the in-class time would be spent explaining the facts of a complex hypothetical law suit calculated to flesh out minute points. I would divide the class down the middle and assign each half to a side of the lawsuit. The next five minutes would have the students working on arguments for their side, sketching an outline for their side's trial argument/appellate brief. The remainder of class would be used to discuss the arguments for both sides, occasionally calling on students at random to ensure participation (note: contrary to what many law professors apparently think, mandatory participation is not synonymous with the Socratic Method).

The former approach gives a generic, cursory overview of basic principles and triggers active participation of variable quality in 5% of the students. The latter method would give a generic overview AND show students the governing law in the state a majority of them will practice. The latter approach simulates how an associate at a firm may handle a new problem: consult secondary material, consult on-point primary material, talk with senior partner about the merits when that law is applied to our factual situation. It would generate 95+% active participation on every topic. Furthermore, by giving students 5-10 minutes to prepare a response and asking open-ended questions, you eliminate many of the major drawbacks of the Socratic Method, like the constant fear of unpreparedness and not knowing what will be asked.

Of course the latter method would eliminate bland, standardized, profitable casebooks and require professors to run a Westlaw search every now and then, but I think the advantages would be worth their well-paid time.

In fact, it is my firm belief that 2-3 years of the latter method would far better prepare students to "think like a lawyer" than the former, and that shouldn't be much of a surprise if one looks at things in the abstract.

The Socratic Method - as it's used by Socrates in Plato's Meno - is only fully effective for logical reasoning, that is, problems solvable through application of formal logic. Law problems, which often involve interpretation of fact and application of policy preferences, are not solvable through formal logic.
Thus, what law professors use is an inauthentic Socratic Method. Instead of making students reason their way to logical conclusions (like the laws of geometry, for example), professors force students to reason their way to legal conclusions based on lines that are drawn from non-logic-based sources (like sound social policy). As a result, students - the 2% of class time they're each "on call" and respond to a professor's cycle of back-and-forth questions - aren't really learning how to apply logic or really "how to think" (the purpose of Socrates' method) at all. They're learning where the lines are drawn, which isn't a process, but an observable fact, which their teacher could just tell them (or they could read in a well-written book).

With that in mind, the Socratic Method shouldn't be expected to teach a damned thing more than any other method of mandatory participation. Since mandatory participation can be achieved in a variety of ways other than the Socratic Method, law professors' and administrators' claims that there's something special about the Socratic Method are baseless bullshit.

So why do law administrators and professors continue to extol the virtues of this thing as if it were a religious rite of passage?

I present but one explanation among many possible causes.

The ABA requires that every single law student is subjected to 45,000 minutes of classroom, desk-and-chalkboard instruction time, independent of the knowledge or skills of the student. (Standard 304(b)). That's 750 hours. Since going through outlines and basic concepts of relevant material would only take a fraction of that time, law instructions have to find ways to fill the remainder of the time. Given all the possible alternatives, law schools have chosen their version of the Socratic Method, since telling students that they are wrong and steering them back to correctness eats up time. Additionally, the casebook /large-class /Socratic Method routine is cheap to produce and easy for professors to implement, as anyone with a good outline can conjure up hypotheticals to illustrate points.

And what's more is that the Socratic Method has the force of history behind it. Generation after generation of lawyers have faced this same half-baked pedagogicial tool. They graduated, and did well, and credited the Socratic Method and promoted its increased use. It becomes a self-fulfilling prophecy that one "thinks like a lawyer" after navigating a Socratic argument.

At one point in time, with smaller class sizes and inaccessible courts, before Westlaw or widespread secondary sources or commercial outlines, it may have had quite a bit of utility in leading students to see the lines while actively participating and interacting with their professors. It may have been genuinely-good preparation for being a lawyer, possibly the best there was.

But in today's environment that simply isn't the case.

Imagine how that 750 hours could be spent instead of sitting in a sterile classroom while other students back-and-forth it with the professor. They could be spent going over actual appellate court briefs and discussing why the attorneys argue it the way they do. They could be spent going to actual courthouses and watching real trials, or in watching trial footage on video tape. They could be spent discussing actual modern law that's relevant to real attorneys working today rather than random cases from 1965.

Many law school syllabi make some claim about how reading an outline won't teach you the law; only classroom attendance will. Given that reading an outline takes maybe an hour and sitting in a 3-credit class takes 45 hours, why would anyone expect otherwise?!? Comparing apples to apples, let's put that 45 hours (and the 45 hours used to prepare for them) to different use. I'm pretty sure most anyone with any connection to the legal world could put that 90 hours to significantly better, more efficient use than the Socratic Method and casebook song-and-dance, even a lawyer with a damaged capacity for imagination.

When one considers these more efficient alternative uses of time, defending the teaching format of current law schools as being a sound pedagogical tool worthy of continuation - especially given the damaging psychological effects it produces - becomes a Herculean task, an apt word given that most beliefs regarding the effectiveness of the Socratic Method stem from mythology and not empirical evidence.

I shudder to think what would happen if medical school pedagogy were run this way.

*CRACK = mnemonic device for remembering a sure-win organization for written legal arguments: Conclusory introduction, Rule of Law, Application to Facts, Conclusion, Kill self with alcohol for adhering to a dull writing format.