Yesterday I gave a talk entitled “Programmatic Excellence in a 21st Century Legal Writing Program.” In that talk, I noted that one of the things I think the legal writing field needs to work on in the coming years is the possible role in our pedagogy for the intentional formation of professional identity in our students.
I have previously written a post about the difference – as I see it - between professionalism and professional identity. The latter term comes from Chapter 4 of the Carnegie Report, but it is not especially clear about what it means, and I think that has lead to some confusion. What I said in the previous post is that I think we have been confusing professionalism with formation of professional identity, and that the latter is not something we can “teach” per se, since you cannot teach someone to form their identity. Rather, we as teachers need to create “situations” in which our students can be confronted with ethical questions and reflect on the decisions they make, and be guided by us as they form their own professional identities. I said those things in my talk yesterday.
At the end of my talk I received a pointed question asking for specifics about what those “situations” might look like. And I gave a fairly general answer. On reflection, I realized why I gave a general answer. Because – other than what I do in my Discovery class in this area – I had not yet given enough thought to the specifics of how to create these classroom “situations” in other courses. So I have been thinking about that since.
I have to come up with a better term first. “Situations” isn’t specific enough either. It does come fairly close, since the definition of that word includes “a combination of circumstances.” And what I am suggesting is a combination of guidance steps that ideally take place in a particular order. For now - until I can come up with something better - I am going to call it a “Guidance Sequence for Formation of Professional Identity (GSFPI).”
Now, to the specifics of a GSFPI. It seems to me that the sequence has four essential components. 1) An exercise or a writing assignment that sets up an ethical dilemma as it appears in practice; 2) An identification by the student of the ethical quandary raised in completing the assignment; 3) An expression by the student of the ethical issue and their reflection on their own decisions about how they resolved the dilemma; and 4) Some form of feedback and response from the professor about the decisions and choices the student made.
This could be accomplished fairly easily in a simulation-based course, but there is no reason it could not also be accomplished in a traditional doctrinal course. It could be a separate assignment in the course, with a portion of the grade assigned ot it. The feedback from the professor is more time consuming in a large class, but not impossible with a well-designed rubric.
In the Discovery class that I teach (a simulation-based class), every discovery document the students prepare offer opportunities for identification of ethical issues, and the memos that accompany each assignment specifically ask the student to explain the choices they made and reflect on how and why they made those decisions. In the final step of the sequence, I provide margin feedback on their memos, and one of the criteria in the grading rubric on each assignment addresses the accuracy and quality of the identification of the ethical issue, and the depth and clarity of the reflection.
To bring this back to the first year legal writing course, I think we (as a field) should be working on how to introduce such GSFPI opportunities in the 1L course, for three reasons. First, the Carnegie report suggests that formation of professional identity should be infused in the entire curriculum, and obviously that would include LRW. Second, because we already do some of this (just not necessarily intentionally) and we are the first class the students have that simulates legal practice, it seems appropriate that our class would introduce concepts of formation of PI. Third, it would give us an opportunity for more connections with other parts of the curriculum working on formation of PI, most particularly the clinic.
Fortunately, it should not be difficult to do. Perhaps one way might be to have an ethical dilemma come up about whether to include a borderline negative case in a brief. That is a writing assignment we already have in the LRW course, and sometimes this does happen. But we do not necessarily ask them (or have an opportunity to ask them if we don’t know about it) to identify and reflect on the choice they made about that case, and as a result, we lack an opportunity for response and guidance from the teacher to complete each of the steps in a GSFPI. With a bit of intention and planning, we could do this.
I am grateful to my interlocutor for the question yesterday because it made me think in a more granular way about this. What is provided in this post is merely a statement of how far I have gotten to this point in articulating a specific framework for the creation of the guidance “situations” in class or clinic that I hope can support and facilitate the formation of professional identity in our students. More to come.
