Law School 2.0

The Practicality of Practicums

The February issue of The Docket, a montly publication of the Colorado Bar Association, includes an article by a former student, Beth A. Tomerlin.  The article, The Practicality of Practicums: Thinking and Acting Like a Lawyer, One Class at a Time, describes the Discovery Practicum course that I have taught at DU Law School for nearly 20 years.  Beth was a student of mine in Lawyering Process in her first year, and took the Discovery course in her second year.  She graduated from the law school in 2007.

Needless to say, it is gratifying to read what a student has written after taking one of your courses, particularly when it is written from the perspective of having been out in practice for several years.  But this is especially true when it makes such a convicing case about how the course helped her be prepared for practice.  For any teacher, seeing a student succeed with what you taught them is immensely gratifying. For a teacher like me who has given so many years to this sort of teaching - well, it doesn't get better.

Although I have to say, it takes some getting used to. I first taught this course almost 20 years ago at DU, as an adjunct professor. I felt like I was about as alone as alone could be. I thought it was working, and my students seemed to think so too (for the most part).  I tweaked the course over the years, and when I joined the full-time faculty in 2003 I revived the course in the curriculum, and have taught it once or twice a year since then.

It is not like this is rocket science or anything. It can be done with virtually any law school course. It is based on the simple proposition of "Learn and Do."  Learn the rules and the cases - the applicable doctrine - and then practice it in between classes.  In my experience, this is best accomplished when the course is designed as what I call a "whole course simulation," organized around a rich problem set.

It is this kind of course that really needs new teaching materials, since a traditional casebook just won't work.  That is why I have been serving as Series Editor on the Skills & Values Series with Lexis for the last several years, and why I authored the S&V book for Discovery.  Although you could use it in several different ways, it is designed to support this kind of whole course simulation (as are the other S&V texts).

In the Discovery course, students read the rule, applicable cases, and some information about strategy and context before class (some of which is in that print book shown above, and some of which is in the Webcourse for the book online), then we review and discuss that material in class, and then the students engage in a mock litigation and *use* the discovery tools and strategies we have learned about in class.  Each week, they prepare a discovery document and serve it on their opposing counsel. The next week we learn about the next discovery rule, and then we practice that one.  I give them feedback on each assignment. Later in the semester they take, defend, and act as a witness in a deposition (with student court reporters taking down the transcript).  And at the end of the course they settle the case in settlement negotiations, and the final paper is their settlement agreement.

There are many advantages of teaching in this way. For starters, it's more fun.  For the teacher as well as the students. As a result, both are more engaged, and engaged learners are learning more. Students love this approach (you may read some of my student evaluations at the link below). Imagine such a course with a professor lecturing about the rules and strategy during class, with students taking a final exam for 100% of the grade.  Well, I suppose students could learn the rules and cases in the traditional class (although I don't think they would learn more substance than what my students learn anyway), but the retention rate would be awful. And they would never actually learn how to draft the discovery documents they will soon be asked to draft in practice.

But don't believe me! Read Beth's article - it's all in there.

When I read the Carnegie Report in 2007 I was gratified to see it argue in favor of more law school courses in which Doctrine, Skills, and Professional Identity are integrated. Because that perfectly describes the goal of the course design for the Discovery Practicum. Students learn the doctrine - be assured of that. But they also begin to develop their skills of using the doctrine (and hone their legal writing skills too - always a good thing). Perhaps most importantly, the simulation creates situations in which the students are called upon to begin to develop their professional identities. What kind of lawyer do they want to be? How will they behave when this situation arises in practice? A typical law school course can *ask* students questions like that, but until they are put in a situation that requires them to confront their own decision making process, they won't really know what their answer will be.  I think that when the Carnegie Report called upon law schools to do a better job integrating Professional identity formation into the curriculum, this is the sort of opportunity they were referring to.

In sum, it is nice that the course is getting some attention, finally. But mostly I am proud of Beth, for working hard in law school, thinking through what she needed out of the experience, and now for making her way in her career. And I am proud that she feels like she received a good education at the DU Law School.  Her article is a good rebuke to David Segal's most recent article in the New York Times, which had the headline: "What They Don't Teach You in Law School: Lawyering."  Ha.

If you would like to learn more about how the Discovery course works, read Beth's article, and take a look at the teaching portfolio on the Educating Tomorrow's Lawyers website.  Also, please feel free to contact me with any questions - I would be glad to help in any way I can.

Article on eTextbooks in Legal Technology News

 

In the Legal Technology News this week Evan Koblentz published an article entitled: Apple, Publishers, Open-Source Dictate Law School Textbook Evolution.  It is a helpful article about the possibilities for future law school textbooks.  It quotes me, as well as John Mayer from CALI.  

As Evan suggests, no one really knows what the future will bring, or the timing of it.  But it does seem that the era of the traditional law school textbook is on the wane.

As I have said before (in the LS2 book and elsewhere), we often think of new technologies as replacing, rather than as being additive.  It makes for good media - "the sky is falling," and all that - but more often, new technologies are additive. We still have records and CDs after all.  We will still have books - a far more useful technology than either records or CDs - for a long, long time.  

The interesting dynamic in the law school textbook market is found in the combination of forces.  We know we need to teach in a different way - not, by and large, the casebook-bound way.  So we need new teaching materials at the same time as the technology is maturing to support the delivery of learning material in new and more effective ways.  It is in the combination of these forces that interesting things will happen.  Will the answer be found in hybrid books (print and online), at least for some time?  Will it be found in eBooks? Will it be found in interactive iBooks? Inquiring minds want to know.

But most likely it will be a combination of these, for different learning goals, and used in different ways for different courses, over a long period of time.  The market is not disappearing only to replaced with a phoenix rising from the sand. The market is fracturing.  Which, of course, presents opportunities for all of us.  Publishers, Authors, and Teachers.

CELT Conference - March 29 - 30, 2012

The Center for Excellence in Law Teaching, at Albany Law School in Albany, NY, is hosting its first conference on March 29 -30, 2012.  The title of the conference is "Setting and Assessing Learning Objectives from Day One." 

The conference will focus on an important topic in legal education, that of outcomes assessment. Over the last several years, the American Bar Association has been debating several versions of additions to its accreditation standards relating to assessment.  (The first draft of the standards was unveiled at the Legal Education at the Crossroads: Assessment Conference at the University of Denver in September, 2009). Despite considerable resistance from the legal academy, it looks like the ABA is going to pass some form of outcomes-based assessment standards.

Which means legal educators need to understand what is going to be required, and how to go about starting and managing the assessment process. That is what this conference is going to be about.

To view the program, click here.  I will be the opening keynote speaker on Thursday night, as the conference begins.  My topic is "Update on Outcomes Reform in Legal Education."  More information on the conference, and a link to register, can be found here.

 

Working with iBooks Author

I have been working with Apple's iBooks Author software more today, and can report that it is very much like Pages for the Mac, with interactive "widgets" built in to add interactivity and an output capability directly to iBooks. It also has a "Preview" feature so you can see what it looks like on your iPad before you publish the book to the iBookstore.

As I was working with the program, I prepared a mindmap showing the features I think one would want in an interactive textbook for legal education, and also noting which of those features iBooks Author has already baked in. Here is the diagram (the checkboxes indicate which features Apple has already included):

The quiz functionality is very basic, and would not work well for legal materials.  If you are going to quiz law students on legal information, the provided answers in the multiple choice questions need to be longer than is allowed in the software, but more importantly, they need to provide detailed answers for students to review after they have taken the quiz.  Also, it should be noted that there is no "email results to teacher" option, or any capture of how the student did on the quiz. This functionality has been part of law school courseware sites for many years, and so many will want to have it (in some form). The thinking seems to be (so far with this 1.0 version of the software) that these questions are merely for review.  Which is fine, but a law text would need more room for the questions and more information provided in the answer and review part of the quiz. Merely knowing you got the question "right" does not provide enough instruction.

Also, a glaring omission is social networking. One of the most important technology developments in the last several years has been the rise of social networking.  Social reading is still catching on, but the Kindle has had this feature for over a year.  (If you are reading something on your Kindle and want to share a passage with  your Twitter following, it's a matter of a few clicks). This kind of functionalility could be very powerful for law students, but it is not available in the 1.0 version of the iBooks Author software.

A concern is that links into webcourse systems may be somewhat problematic.  Embedding links in an iBook out to a website is simple: it opens the link in Safari on the iPad.  But embedding links that might require a logon step (like to a University Blackboard or other courseware system) does not seem to work very well.

A more sophistocated software end-to-end solution can be found at Inkling, and in the Inkling iPad App, but that software is not generally available to the public, much less free.  Inkling is working with publishers to help them convert their books over to iBooks, and they do have social capability built in to their software, as well as many of the same (or similar) interactive features the iBooks Author software does.  

Inkling has published a traditional law school textbook with Aspen Publishers (Wolters Kluwer): Wills, Trusts, and Estates.  It is, frankly, a very poor example of what I think we want to do in making a law school text into an iBook format for the iPad.  I downloaded the first chapter into the Inkling software on the iPad, and it essentially the same as the print - that is, the old style "dinosaur" formatted law textbook.  There are internal links to other parts of the text. The demo page for the book seemed to indicate that there were links for cases out somewhere, but those are not visible or usuable in the Chapter I reviewed. I also did not see any links to rules or much of any additional, contextual information.  Oh, there was a picture of Sandra Day O'Connor embedded in one of her opinons while she served on the U.S. Supreme Court.  Big whoop. And here is the most disappointing part: the Inking eBook version of the Wills & Trusts book is the same price as the print version: $159. Although you can purchase chapters separately (for $22 each).

It is interesting to read the reaction of Inkling's CEO to the Apple eTextbook announcement on Thursday. Here is a particularly thoughtful quote from his blog post:

Although Apple introduced some beautiful content, there are miles to go before this industry scales itself around building products that are “born” digital. To do so will take sophisticated tools and a cross-platform, open infrastructure that has yet to materialize. 

He put his finger on a big issue right there - the textbook publishing industry is going to have to re-scale itself around a different kind of publishing than they are used to, and that they know. "Born digital" is a different realm, and being a traditional editor at a traditional publishing house is a job that is going away (however slowly) or changing significantly (over time).

In the meantime, Apple has made a tool available to enterprising authors to publish their own work, and experiment with their own interactive elements. How these will be incorporated into law textbooks remains to be seen, but the iBooks Author tool makes a lot possible.

Teaching Professional Identity with Skills & Values Texts

Another nice mention of my book Skills & Values: Discovery Practice was posted to the Legal Skills Prof blog.  It was written by Scott Fruehwald: 

While the supplemental skills training texts in the Skills & Values Series from LexisNexis do vary in format, most of them include materials on ethics training. As I stated in a post last week, I am especially impressed by Discovery Practice by David I.C. Thomson (2010). In this book, Professor Thomson makes ethics an integral part of discovery teaching. Considering that discovery involves the tension between the ethical duties of zealous representation and confidentiality to the client with the duties of fairness and disclosure to the court and to other parties, it makes a great deal of sense to include professionalism here.

In sum, I agree with the Carnegie Report that we need to teach professionalism better in law school. Probably the best way of doing this to incorporate skills training into doctrinal courses, especially now that casebooks and supplemental texts allow professors to easily do this.

Scott is right on track. It is possible to integrate professional ethics issues into any doctrinal course, and with the Skills & Values Series (as it grows to cover nearly every subject), it should be fairly easy to do. 

I would only add that as we develop our thinking about professional ethics instruction, we should be explicit about what we mean.  It seems to me that the terms "Professionalism" and "Professional Identity" have been getting confused.  Yes, there is some overlap between them, but each contains components that are distinct from the other.  The Carnegie report is critical of legal education in not teaching or - more accurately, I think - creating opportunities for students to develop their professional identities.

Here is my shot at the distinction - Professionalism relates to behaviors, such as timeliness, thoroughness, respect towards opposing counsel and judges, responding to clients in a timely fashion.  I actually think we teach this pretty well in law school, across the curriculum.  We expect certain behaviors (often we define them in our course policies documents, and certainly they are defined in the student handbook), and for the most part we get them.  Professional identity relates to one’s own decisions about those behaviors (which sounds like overlap, but it’s not), as well as a sense of duty as an officer of the court and responsibility as part of a system in our society that is engaged in upholding the rule of law.  For me, “teaching” Professional Identity means we ask the student to finish this sentence: “I am a lawyer, and that means, for me that I will resolve this ethical dilemma as follows…” Carnegie is right when it says we don't do that very well across the curriculum

Of course, clinicians do, and so do lawyering process and practice-based courses (such as trial practice, or the Discovery Practice course that I teach).  Anytime you present a student with a practice-based ethical dilemma and ask them to learn the applicable rule(s), choose their own path, and then reflect on their decision, you are allowing them to form their professional identity. But we could do more of this, throughout the curriculum. Let's be clear, though, what we mean by Professionalism and Professional Identity.  

eTextbook Announcement from Apple today

About a year ago I gave a presentation in which I said: “Somewhere in a warehouse in Brooklyn, there’s a group of guys and gals living on Jolt cola and cold pizza creating a publishing platform direct to the iPad.  It will allow authors to create interactive textbooks, publish directly to the iBookstore, and to take a 70% royalty, not 15 or 20.”  I did not know any of this to be true.  But I had a hunch; it just seemed inevitable.

A few months later, it turned out my guess was right – PushPop Press (yes, I even had the “based in Brooklyn” part right) announced their first interactive book, Al Gore’s Our Choice.  The Vice President’s latest book on the environment – for the iPad only - provides an immersive reading experience, with photos that can be moved and enlarged, views of data on graphs that can be adjusted by the reader, and embedded video and voice overs.  It is a stunning book, and I recommend it – for the content, but also for the delivery.  What was even more significant to me was that PushPop announced at the same time that they were about to make available the software that would let authors create such books, and publish them to the iPad. That was significant to me because I have long argued that we need better and more interactive textbooks for legal education. It is what I said three years ago in the Law School 2.0 book, and why I have been working on the Skills & Values Series with Lexis for the last two years. The reality is that if we are going to teach law in a different way - a 2.0 way - we need different teaching materials.  The traditional casebook just will not work.  This question is also deeply intertwined with the Educating Tomorrow's Lawyers project, about which you can learn more here.

And then this summer, the stunning and disappointing news that PushPop Press had been sold to Facebook before they could release this software, and they were no longer going to deliver the product others could use, or any other eBook.  At the time, that announcement was both an inexplicable setback and a disappointment.

This morning at the Guggenheim Museum in New York, Apple made an announcement that might explain why PushPop decided to fold its tent.  Apple announced today a new software product called iBook Author, which allows authors to create interactive books for the iPad and sell them direct to customers through the iBookstore.  And, just like apps in the iTunes store, authors get to keep a 70% royalty. Oh, and Apple has made the iBook Author software available for free (although it runs only on the Mac).

From my point of view, this is a significant development.  When the iPad came out, I posted here about that development, which was a very important one in the journey towards the interactive eTextbook future.  But in the last two years there has not been much to talk about – publishers have been figuring out what to do with it, and authors have been unsure whether to commit to the platform. The iPad gave us the platform, and while it has taken two years Apple has now sold more than 50 Million of them.  Not surprisingly, they are becoming more common in law schools.  In the last year, I have seen them appear in my classes, and in faculty meetings too.

But there is another critical step needed. Until now the reason to use an iPad to contain and use your law school textbook has been essentially nil because publishing the kind interactive textbooks that I have long envisioned for law school was difficult and expensive and so we just have not seen them yet.  But with Apple's launch of the iBook Author software, professors who want to use their own teaching materials (sometimes called a “course pack”) and to make them available on the iPad can do this with relative ease. For more extensive law books, professors who have current publishing contracts will want to speak with their publisher about whether they could get some help publishing their book in this format, and to begin to think about what interactive elements would make their book more engaging and useful for their students.

It is probably not entirely a coincidence that West – an information giant in the legal field – has just announced that they are divesting their Law School Publishing Division.  Just selling it off. Apparently, they no longer want to be in the business of producing what I have called "dinosaur" textbooks for legal education. Click here to read their letter to authors about this. 

Of course, for Apple, their move is about selling more iPads.  There is much discussion today in the blogosphere about how the EULA in the software requires an author who uses it to publish an iBook – and wants to charge for it - can only post the book for sale there.  That is, the author cannot separately make the iBook they produce with the Apple software available for a download from their own website (unless they make it free).  Although this is a new and fairly brazen requirement for the output of software (can you imagine such a requirement for everything you've written in Microsoft Word?) this seems a reasonable restriction to me.  Apple is offering the tool and the platform – the “end-to-end” solution - that has been elusive so far in this space.  Perhaps a reasonable analogy is that when you want a booth at a conference to gain exposure to your target audience, you have to pay for the booth, and it's only useful there.

But over time, we will probably see more open solutions - ones that work on the PC too - and that allow authors to publish eBooks simultaneously to the iBookstore for download to the iPad and to Amazon for download to the Kindle Fire.

In the meantime, this is a significant step for education - and thus for legal education too. I highly recommend that you view the demonstration video on Apple’s site - it explains in beautiful Apple style what they have done (complete with compelling cello music in the background).  If you would like more information about Apple's announcement from a more objective source than Apple, you might want to read this article at Wired.  Some other interesting views of Apple's announcement can be found here, here, and here.

I welcome your thoughts about this development - please post them in the Comments.

 

eBooks with Scroll Motion

This video of Josh Koppel, CEO of Scroll Motion, shows how their technology is being used to present Hearst magazines (including Oprah) on the iPad.  It also shows their technology in a Houghton Mifflin math textbook, which looks particularly interesting to me.

I have long thought that this sort of technology can be and should be applied to law school textbooks.  (In fact, I predicted it three years ago in Law School 2.0). Not all of law textbooks, but many of them.  They could be so much more engaging and instructive.  No, not all law students have iPads.  But three print law school textbooks cost the same as an iPad, and those mostly contain cases that have been available free online for almost a decade, and at the end of the semester you can't play Angry Birds on them.  

At the Future Ed 3 Conference at New York Law School last April, I gave a talk within which I said something that was interrupted by applause by the nearly 100 attendees.  (That's never happened before, by the way). I said: "The classic law school textbook is a dinosaur waiting to die."  The interesting question is: what will it be replaced with?  The Skills & Values Series of hybrid (print and online) law school textbooks - described elsewhere on this blog - is as far as I have gotten in answering this question, and they are pretty cool. But this sort of technology - and similar like Inkling and Kno - has the potential to make truly engaging, useful, and more effective books for law school teaching.

Here is the clip: 

 

Another article about Legal Education Reform

Yet another article summarizing the discussion about change in legal education, this time by Karen Sloan in the National Law Journal.

This one at least emphasizes the role that employers play in all of this.  If they continue to just hire the "top" students from the "top" schools, they will hinder the reform they say is needed.  Not addressed is how we need to finish our own curricular reform, and certify competency in certain areas before the employers are likely to change.  That's something that isn't discussed much, but is needed. 

What are the learning outcomes of your law school?  Has your faculty articulated those?  Most have not, but if yours has, what are you doing to measure achievment of those outcomes?  Once we can say what it is that we are teaching our students, and have some measurement of how we are doing (other than the bar exam, which has its own issues), then we can demand that employers pay attention to our students, and allege with some authority that they are better prepared than the "top" students at the "top" law schools.

Review of S&V: Discovery Practice

Many thanks to Scott Fruehwald for his thoughtful, insightful, and frankly flattering review of my Discovery Practice book in the Skills & Values Series (Lexis, 2010).  I am blushing over here.

There is not much to add, except it seems to me Scott captured the book exactly as I intended it to be, and that I hope it actually is.  And his suggestion of its use in a course combining discovery and products liability is a brilliant one.

Coverage of the Skills & Values Series

There was some nice coverage of the Skills & Values Series from Lexis (on which I am co-series editor) on the Law Skills Prof Blog.  Thanks to Scott Fruehwald for the mention.

The Skills & Values Series of law school textbooks is designed to address the critical gap in teaching materials for legal education.  We all know we need more practice-focused teaching, but we still are working with expensive casebooks full of appellate cases.  So those of us who want to teach in a "Carnegie Integrated" way need different teaching materials.  These books are hybrid texts, part of which is in print, and most of which is online in the Lexis Webcourses platform.(I argued in favor of this sort of hybrid text in the Law School 2.0 book, so I figured I should write one!) If you adopt a Skills & Values text, your webcourse is already set up for you, and fully populated with supporting information for the course. 

I wrote a text in the Skills & Values Series for my Discovery course, called S&V Discovery Practice.  I used it for the first time last spring semester, and it was very well received by the students.  I am pleased to report that it has been adopted at four schools this spring, all of them top schools, so I am frankly humbled by this.

More information about the S&V Series of books can be obtained from your Lexis publishing rep.  There are S&V books for Contracts, Torts, Wills & Trusts, Civil Procedure, Evidence, Discovery, and Negotiation skills.  More on the way, including Administrative law (soon!)