Monday, January 26, 2015

Albany Law School implements mandatory pasta marshmallow structure building to teach effective lawyering skills.

                                                 
(Albany Law students posing with pasta-tive pride beside their mandatory marshmallow monolith).

Like many experienced practitioners, I have often reflected that the practice of law is much like building a tall pasta marshmallow structure. Eliciting and arranging the facts is a long and twisty process, like spaghetti. Legal principles and precedents are sticky, yet spongy, like marshmallows. You must be diligent and creative as you build your case, or your pasta marshmallow structure. But you must also proceed cautiously and with due care, because an insufficiently sturdy foundation, or even an ill-considered motion, can cause the whole thing to collapse.

That is why I am delighted that Albany Law School, at the behest of Alicia Ouelette, its then-acting and now full-blown Dean, has introduced pasta marshmallow construction as a mandatory facilitated collaborative skill-building exercise during law school orientation. Followed, of course, by law professor-led discussions about the appropriate legal lessons to be digested.

http://bestpracticeslegaled.albanylawblogs.org/2014/08/13/shultz-and-zedeck-collaboration-and-motivation-in-orientation/

In these enlightening post-pasta discussion sessions, the Albany law professors and their students noodled such topics as "[W]hat might these exercises suggest about effective lawyering?"; "[W]hat was challenging about mandatory collaboration?"; and "[W]hat might they have done differently to more effectively collaborate?" Many students reflected on the "significant importance" of communication skills, particularly listening. Encouraged by faculty, the students discussed the gender confidence gap, time and resource management, and problem solving techniques. And, of course, "[s]tudents also pondered what kind of teams they might participate in their post-graduation future." (I wonder if any mentioned wait staff at an Italian restaurant).

In lauding the importance of this activity, Albany Law Professor Mary Lynch, the Director of her school's Center for Excellence in Law Teaching, displayed the exuberant eloquence noted once before on this blog:
"As graduates, these students will be participating in teams and in collaborative enterprises that we faculty probably cannot now envision.  However, it is our job to facilitate their acquisition of the kinds of skills and capacities and attitudes that will best serve them in the uncertain but potentially exciting future. . . . Happy Facilitating."
You know, as preposterous as this all sounds and is, it is not an incorrect application of alleged visionary Prof. William Henderson’s "competency-based" conception of legal education, wherein law school courses are designed to bolster personal habits (aka "competencies") that legal employers allegedly favor. Or, as Henderson puts it, "the knowledge, skills, behaviors, and attributes of highly successful professionals," which include "for example, teamwork, communication skills, emotional self-control, problem-solving, and decision-making." William D. Henderson, A Blueprint for Change, 40 Pepp. L. Rev. 461, 496, 505 (2013).

Indeed, the Albany pasta pedagogues drew inspiration from a text favored by Henderson, a list of 26 extremely general qualities and habits that supposedly add up to an effective legal you. See Marjorie M. Shultz and Sheldon Zedeck, 26 Lawyering Effectiveness Factors. Among the Shultz/Zedeck factors are problem solving, creativity/innovation, and practical judgment. Unsurprisingly, "thinking outside the box" is mentioned, though Shultz and Zedeck do not specify whether it has to be a box of uncooked noodles.

What is happening, I think, is that law faculty are trying to serve up some tempting innovations in place of their repulsive standard pedagogical cuisine. And it is a worthy impulse, even if this particular innovation is, to be charitable, pretty weak sauce. [insert bad joke about watery pesto or marinara]. But for obvious reasons of self-interest, they cannot implement the innovations that are really needed--drastically lower tuition and class sizes, and a clinical/apprenticeship training model in place of Socratic hide-the-ball (or, shall I say, hide the meatball?) classroom bullying. The fairy tale pig who built his house of straw had a famously bad outcome. So too will law school deans who build their innovations out of macaroni.

41 comments:

  1. Excellent writeup. I look at this stuff and cringe, though, and for more reasons than just being an opponent of the scam.

    This is one of the glaring examples where academia and the real-world just don't line up. I would prefer to live in a world where "teamwork, communication skills, emotional self-control, problem-solving, and decision-making" are used to solve problems. That's great. Once in a while it does happen, and it's a relief.

    The reality, however, is that when you are dealing with "bet the farm" litigation, be it in the civil or criminal spheres, the zero-sum game doesn't allow for this. If it weren't a tug-of-war, it wouldn't be litgation. I can't tell you how many of my classmate's bubbles were burst back in the early 2000's, once they realized that there was little to no room for these so-called innovations and the future was the grim reality of 90% dog-eat-dog (or whatever percentage you want to put on it).

    Law Schools are lying to a lot of people when they paint this picture of collaborative, problem-solving practice. Many things just aren't that collaborative, and litigation is a moden-day stand-in for gladitorial combat in many cases.

    I'm open to the occasional humorous exercise to help demonstrate a point, but (as L4L put it), you can't squirt ketchup into a swimming pool and call it tomato soup. Young people need to be educated as to the "truth" out there - anything else is a disservice.

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  2. "... an insufficiently sturdy foundation, or even an ill-considered motion, can cause the whole thing to collapse"

    Heh. I see what you did there.

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  3. What the fuck is going on?

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  4. The other teamwork task of building a kids bicycle and riding it around a course reminded me of the last time I saw someone riding a tiny bike. It was a clown at a fucking circus, a rather appropriate comparison to these morons thinking that "teambuilding" exercises like this do anything to further the practical skills of the students.

    If you can't work in a small team and not fuck stuff up by being a dick by the time you get to law school, you aren't ever going to figure it out. Which is, incidentally, the vast majority of law students who end up being lawyers with zero social or collaborative skills, members of a profession that suffers from a total lack of people willing to work together.

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    1. So true. Lawyers are dicks. Lame "team building" exercises aren't going to change a person's personality.

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    2. +1. I am in a "JD Advantage" job and work a lot with lawyers. We tend to be pettifogging, trivial and do not tend to get along in situations where we must truely work as a team.

      On a related note, that's one reason why business folks (I work in-house) hate lawyers, because anytime you deal with lawyers in a corporation, the encounter is usually unpleasant. The perception is that they are not there to solve problems, merely to give you dire warnings, go on expensive CLEs, and act as a cost center robbing the company of profits. There's a certain business judgment that many attorneys tend to lack and it drives business people crazy.

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  5. I always love your posts Dybbuk.

    They remind me the times Mel Brooks was asked why he poked so much fun of Hitler. I think his answer was something along the lines of "by making fun of them, we rob them of their power."
    In the same way, your wit takes away the legitimacy of the Scam and exposes these Pigs for what they really are - thieves.
    A solid upper-cut to the jaw!

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  6. I really wish there were some way to explain to the average taxpayer that he/she is paying for this worthless garbage through federally-backed student loans that will never be repaid.

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    1. The national debt is 18 trillion dollars which reflects the government's reckless spending on crap like this.

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  7. They really are off their rockers now, aren't they?

    I guess they WOULD lower tuition, but the King of the Potato People won't let them.

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    1. Someone's a Red Dwarf fan ;p

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    2. Oh and, btw, this IS crazy.. If ever something was crazy, this is it.

      This is just running in circles and psychological games played on the participants, the students, to get them thinking irrationally. That is, not about the ginormous (my word, yah!) sum of NON-DISCHARGEABLE DEBT these fools are signing up for.

      It's insane. Literally insane.

      And, FYI, here's the clip from RD, just to show I get the reference and what 'crazy' is. And this IS insan-o:

      https://www.youtube.com/watch?v=1KE0njnZXyY

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    3. Also applicable to law school grads is the one where Rimmer is on the Holoship, and the woman asks him "What do you do when you want to have sex?"
      To which Rimmer responds;
      "Go for runs.... Watch Gardening programs on the ships' vid."

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  8. Makes me reflect on my lawl school days... Yes it was this clowny 4 years ago too. Where was I looking? Must have been the employment data!

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  9. Your career won't lasta, when it's made of pasta.

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  10. Unbelievably juvenile. What next: fingerpainting in the place of exams?

    Old Guy

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    1. Reminds me of fraternity rush, complete with a few smiling girls.

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  11. I went to a law school that at the time was top 30 according the holy rankings.

    In said law school I was required to take an ethics course described at 3 unit GPA lecture course. Surprise! No lectures.

    On class day 1 we all found out we were to be divided into groups and these groups were to present each and every "lecture" in the class, including studet *skits.*

    At a maximum course load of 17 credit hours per semester, this course cost approximately $5,000 per student.

    But why be coy? Time to name and shame. The University of California, Hastings College of the Law.

    The eroision of meaningful instruction within law schools is underreported and as bad as the eroision in admission standards. But, one cannot avoid it when a course is required.

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    1. For my Property class, we were required to act out (in teams) the facts surrounding a number of various famous property cases. I remember the adverse possession one (Valkenburgh v. lutz (sp?)) and some other one (I think it was a gift case involving a famous painting).

      I remember thinking what a colossal waste of money and time it was. It cost us roughly $60 for each hour we spent in class. Multiply that by the hundred students in the class and it represented a loss of about $6000/hour.
      I realize that overstates it a bit, but it's ballpark.
      This is how law professors "earn" their money Lemmings.

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  12. This and other feeble attempts at teaching "practice" skills prove beyond doubt that 99% of law profs haven't the slightest clue about what the practice of law actually entails. They make up self-parodying exercises like this because they can't begin to imagine--let alone teach--what skills students will actually need (if they can even get law jobs).

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  13. The truth is that most law is self taught by the student reading cases, outlines and canned study material anyway. Few professors are good enough to really impart anything but superficial knowledge to his students. I really did not start putting it all together until I actually started practicing law when it all made sense. I could have gotten as good of an education I got or better by MOOC courses in the basics: evidence, civil procedure, torts and property. But I suspect this is true for almost all of higher education these days.

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    1. It really pissed me off when I realized that the students with the best 1L grades learned almost everything from commercial outlines/supplements. I had way above median admissions credentials for my school, but my grades suffered due to my foolish belief that knowing everything the professors taught would be sufficient for final exams. In many cases, exams expected you to know things that the professors never mentioned and that weren't in the case books.

      Basically, the most successful students learned on their own and/or with help from resources not provided by the school.

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    2. I completely relate to this. I busted my ass, went to every class, took awesome notes and was a super student my first semester, and it was my lowest GPA so far (in last semester now). My last two semesters I didn't do squat and killed it. Not that it matters. Other than staying in the keeping-scholarship range, its not like your 2L and 3L grades do any good when you missed the cut for OCI.

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    3. Thirded. So much for following the sage advice of deans and professors. They knew the true score, yet deliberately led people astray and against their own interests.

      I guess if you did it in the first place so as to get asses in seats, why not continue the charade while they are there?

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    4. I'm convinced that this is the main reason why children of attorneys tend to do better in 1L classes.

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    5. This is all so true. Law school "professors" don't actually teach their students anything. The students learn it all on their own, through endless studying, and then they go to class, where they pay for the privilege of being bullied and publicly shamed by the "professor" if they don't have instant, perfect recall of everything they studied (let's call the Socratic method for what it is -- it's bullying and shaming and pedagogically worthless). To really master the material for exams, students have recourse to expensive commercial materials. And after graduating, they need to take expensive bar-prep courses, adding thousands of dollars to their already staggering levels of debt. Why didn't three years of education (and $200,000) prepare them for the bar exam? Because they spent their time taking classes like "Law and Critical Race Theory" or "Law and Post-Modernist Feminist Discourse" rather than learning anything practical.....because their "professors" wouldn't have a clue about teaching the practical aspects of law, having never actually practiced law themselves.

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    6. My goodness, are you suggesting law school teach actual practical skills, like some kind of lowly trade school? Law school is all about teaching you how to think. According to the professors at Albany Law this now involves techniques borrowed from kindergarden, but who are we to argue with such brilliant pedagogical minds?

      If you want actual practical skills, paralegal school is thataway ->

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    7. 180, 12:03AM. The new normal: If you want to be a lawyer, (1) go to paralegal school first to get actual knowledge, then (2) go to law school in order to sit for the bar. Law school alone is insufficient.

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  14. Its a wobbly structure built on shaky foundations. It needs lots of gullible new debt-funded entrants to prop it up.

    If these new entrants stopped coming, the whole rotten structure would quickly fall over.

    Finally, once any heat at all is applied to it, it will collapse.

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  15. At a motion hearing just the other day I witnessed a local judge supply a bag of marshmallows to each of the parties and declare that he would rule in favor of whomever was able to assemble the best marshmallow tower in the allotted time. I have heard that other local courts have adopted tiny-bike races around the courtroom to resolve discovery disputes as well. I applaud Albany law on its cutting edge legal pedagogy - this is a wonderful example of how law schools should implement experiential curriculum.

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    1. Marshmallows. Trial by ordeal.

      Old Guy

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  16. Guys, the skills learned in this endeavor are useful not only to pastas and marshmellows, but to all foodstuffs heavy in sugars and carbs.

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    1. You'll be able to sculpt masterpieces of art from the ramen noodles you'll be eating for the next 10 years.

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    2. LSTC, so what you're sayin' is, "It's Versey-tile"?

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    3. I am quite adept at building tall towers out of small cups of non-dairy creamer. Can you imagine the legal skills involved?-- it is like litigating a case against gravity. I assume now that this info is known, I will be overwhelmed with deanship offers.

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  17. I notice Tricia posted a comment above. For anyone not aware, LST is compiling a series of interviews with real life, regular lawyers of all stripes in their day-to-day jobs.

    Tricia volunteered and her interview (among 3 others already in the can, and many more to come) can be found at the link below.

    http://www.lstradio.com/iatl/

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    1. Great news. I find myself reposting Tricia's comments and using them as part of discussion, so I'm glad she's participating.

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    2. Thanks, Tricia, for giving that interview. I particularly appreciate your frank and generous discussion of your own business and the difficulty of making a go of it even after 28 years of experience and established presence. It gives the lie to the belief that any graduate can just hang out a shingle.

      Without meaning any disrespect, I do agree that your advertisement (which costs close to a quarter of a million dollars a year) is tacky, and I am saddened that what should be a dignified profession has fallen into the crass and vulgar tactics of used-car dealers. Indeed, I am ashamed of having pursued law at all.

      Old Guy

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    3. Debby Merritt conducted the interview, which amounted to mini-symposium on being a local PI/auto wreck lawyer.

      If I could force all 50.8K projected lemmings to sit down and listen to one point looped over and over again, it'd be Tricia's description of how hard she has to scramble for clients and how expensive it is to run her practice. Even just her monthly advertising budget (for her admittedly "takes tackiness to a new low" type advertising - LoL) averaged $12,000 per month last year. If I heard correctly, that's now heading toward $20K a month just to get enough cases.

      Might (*might*) give those who think, "Hey, if I don't get hired, I can always hang a shingle" a reason for pause and reflection.

      Not without a couple hundred grand in operating capital upfront, they're not.

      Some other interesting views on why experienced lawyers fear to mentor/train noobs nowadays - competition is so fierce they apparently figure the person will quickly become someone who leaves and steals food out of your mouth.

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    4. I've been practicing longer than Tricia and this is what I will say about advertising for personal injury cases: When I first went out on my own in the late 80's (after a stint working in Mid-Law . . . thirty man firm for years), advertising in the phone book was relatively inexpensive given the business it produced, at least in my case. Even a quarter page add was fruitful. Then the yellow pages got greedy and a lot of other books got into the business. Before you knew it, not only did many lawyers opt for full page adds, but double or triple trucks (three pages), banners, magnets, front and back covers, tabs . . . etc. Some of the heavy advertising firms with high volume businesses (get them in the door, settle cheap and get them out of the door) started advertising non-stop in every conceivable forum. Taxi-cabs, benches, billboards, phonebooks, radio, tv, internet banners, etc. It got to the point that even staying in the phonebook in my moderately sized city meant a huge expense and being one of a hundred lawyer pages that somebody would have to leaf through before they got to you. So I tried keeping up with the competition in advertising for a while to the extent I could. But all it resulted in were expensive bills, and a lot of crap calls. Once these crap cases were filtered through the big advertisers, I rarely got a worthwhile case.So I chose to pretty much cut my advertising budget to barebones and work on my website. I decided working my tail off to pay off my advertisers was not worth spending the only life I know I have. So now I save the advertising cost and don't need the headaches of crap cases or an expensive staff to deal with those crap cases. I also refuse to pay Find Law, etc. huge amounts simply to be one of thousands competing with spots on the internet so I don't. I am somewhat fortunate. I don't work as hard as I did in the past. My house is paid off. My kids college tuition has been set aside. I no longer care about status or trying to keep up with the super successful lawyers. And I am still getting by. But make no mistake. Not nearly as much business is coming in the door now as did before. I now have to rely pretty much on referrals or somebody liking my website if they happen to see it. I have been fortunate every year for years now. There was always at least one or two large cases that would make my year, but those are drying up and they are getting harder to get. And I can foresee that it will be too difficult to keep my door open much longer. It is too expensive, and it is getting harder all of the time. There are all also all sorts of ethical traps our bar is setting for us (I practice in Florida)

      On top of all of that, the huge advertising firms not only scoop up much of the business that was previously evenly distributed to hundreds of smaller firms, but because they settle so cheap . . . the insurance companies expect to settle cases for a fraction of what they were worth years ago. A herniated disk might be worth 25K - 50K in settlement a few years ago and now it is worth maybe 10K if you are lucky.

      My only saving grace is that I do try cases, I am Board Certified, so I get some business, and I can sometimes turn those 25K herniated disks into 500K verdicts. But make no mistake, the juries hate us because our image has been destroyed by the advertisers. and you better prove your case with compelling evidence to have any sort of shot at a reasonable return. Overall, I would not do this again if I had the chance. Even though I made decent money over the years, looking back on it, I have not enjoyed this profession. The stress of deadlines, preparation for trial, trying a case and waiting for juries, and more importantly, dealing with the so many aholes there are in this profession. Why would anybody voluntarily choose this life if they did not have to?

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