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August 07, 2012

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AnonProf

Hi Jim,

Thanks for this interesting food for thought. I think one is wise to question the methods of collaborative work, particularly on the issue of which settings are actually amenable to such an approach. I think there may be work-arounds to many of your points, though, so I'd like to set them out.

(1) There is a difference between collaborative learning and cooperative learning, and I think what you've described is cooperative learning ... where multiple students work together to complete a task. Collaborative learning is more constructivist in that it assumes that learning inherently entails a social element. Collaborative learning allows students to work together as a means by which to communicate and negotiate the meaning of the subject.

For instance, let's say that you have just led the class socratically through a case on indemnification clauses. After you finish, you pose a challenging hypo to the students. Rather than plunging right in and cold-calling a student immediately after you finish explaining the hypo, you instead give the students one minute to talk among themselves about the analysis. After that minute, you call on someone and ask them to explain. My experience has been that the investment of that minute of collaborative thinking pays for itself in that I get deeper answers more quickly than having to play around for five minutes with weaker answers caused by the lack of reflection.

I mention this only because I think there's value in both approaches but more practical problems (as you note) with cooperative learning. The rest of my points address what you've described ... group projects.

(2) "...teach students to work collaboratively because that is how law is practiced today." I don't think that's the sole justification for collaborative learning. I think that the main justifications include: (1) that educational psychologists tell us that collaborative/ cooperative learning is an effective method of instruction; and (2) that it is a means by which to diversify methods of teaching, thus improving student engagement.

(3) "students don’t really collaborate when they do a substantial group assignment." I think there are work-arounds for this. One might explain in the syllabus that when groups present a cooperative work in class, the students who didn't draft the particular section (say of a contract) must explain the reasoning for the choices. This forces students to communicate about their work product.

(4) "group work poses serious problems of fair evaluation." My first thought here is to compare this problem of unfair evaluation with the current status quo in legal education. The current methods of evaluation seem questionable in terms of empirical validity, so allowing the problem of cooperative slackers to be dispositive seems to allow the perfect to be the enemy of the very good. Additionally....

(5) "Shirking is always a risk, and sometimes it erupts into a serious problem...." This is also a problem in the practice of law, so why not help students mediate their coping skills while in law school? For instance, one method would require students to journal their cooperative experience. The students then express any difficulties they have, and the syllabus states that shirkers' grades will be adversely impacted.

(6) The problem of materials. This is certainly a valid point, and I think you're wise to provide the students with the materials from the start. But, why does this prohibit a prof from having students work in "firms" to produce the motion to dismiss, motion for summary judgment, etc.?

(7) "If a team drafts a contract, one student might draft the force majeure clause and another the indemnification clause, but aren’t both students better off taking a whack at both clauses?" Another good point. Profs using cooperative methods should minimize "divvying." One of my former colleagues has all students draft different sides of each portion of a contract (in her case, something in the employment law field), and then they work in groups to negotiate an agreeable final product for their clients.

8) "....I am skeptical that lawyers actually practice law collaboratively in any meaningful sense.... In a law firm, will the whole team collectively draft every interrogatory and attend every deposition?" This is true, but it's clear that less formal cooperation is key to survival in firm life. For instance, as a new associate, didn't we all run our work by our peers before handing it up to the partner? And, didn't we all have that ONE person in the class who either refused to pitch-in or was so overly-critical in his/ her feedback that soon no one collaborated with him or her (thus leading to isolation, thus undermining likelihood of promotion)? For those of us who were litigators, didn’t we have to learn how to deal effectively and strategically with opposing counsel who failed to complete their portion of the pre-trial report? I think collaborative work, especially in upper-class courses, begins to expose students to the informal norms that are critical to success.

I'd just close by suggesting that different teaching methods don't fit everyone or every institution. What works for one person may not work for another. But, I think one of the problems in the discourse is that the pro-alternative pedagogy crowd seems to imply (or at least leave the impression) that if you're not doing these things, you're not a competent teacher. I think that’s wrong. Meanwhile, those who are anti-alternative endeavor to disprove alternatives categorically. Like all things, I think the truth lies somewhere in between.

Thank you again for a thought-provoking post.

mls

Two quick thoughts. First, I never understand why law school is treated as sui generis -- business school, medical school and other disciplines routinely use, and grade, group projects without the world coming to an end. To the extent it is valuable, it certainly seems doable. And in talking with lawyers, working collaboratively does seem like a valuable skill. Second, in terms of teaching, I also find giving students time to work in groups adds value to discussion, and also breaks up the monotony of having one or two students called on during a class. It is never perfect, but having students work through a problem as a group, and then turning to it for discussion can be a very useful exercise. I also have students periodically turn in a written work product from the group so I can sample what they are learning -- sometimes they are spot on but commonly, particularly in first year classes, they miss things that surprise me and it is always useful for me to get that kind of feedback, which I can turn to the next day.

John Steele

Why define “collaborative” so oddly -— with straw men arguments about Nerf basketball and lawyers being wildly duplicative? And why rely on "it-seems-to-me" arguments? Why not ask hiring partners, associate evaluation partners, and associates what teamwork skills are vital for professional success? Why not rely on the MacCrate and Carnegie Reports as well? You might conclude that, despite your personal intuitions, working on tight deadlines within the context of busy teams is the daily fare of private practice.

And what did you mean by this sentence: “Moreover, surely in many cases client privilege will preclude sharing information with other lawyers even informally and without billing”? Can you elaborate on the "many" situations where sharing information within a law firm waives attorney client privilege?

And why assume that teaching through teamwork is so difficult? As the prior commenter noted, other professional schools do it. Some law schools already do it.

Steve Diamond

My guess is this post reflects the views of a former litigator. All of the concerns raised have merit but training students to become transactional lawyers, or transaction cost engineers, faces a much more important problem - overcoming the cultural bias inherent in the appellate case law based teaching model.

I use a securities regulation case book that is very good at what it does but is most definitely not written by transactional lawyers. And the challenge is to reshape the course to include sufficient exposure to transaction issues and culture. For this purpose, group exercises are critical and are welcomed by students.

Orin Kerr

MLS,

There is a pretty big difference between the role of grades for law students (on one hand) and for business and medical students (on the other): Law school grades have overwhelming importance for law students seeking jobs, while my sense is that they have a much less significant role for business and medical school students. For example, most of the top business schools have grade non-disclosure policies. Under these policies, students are strongly discouraged from telling prospective employers their grades. http://www.nber.org/papers/w17465 If employers don't even know about grades, then presumably they don't play a role in hiring; and if they don't play a role in hiring, they probably don't matter all that much to students as compared to law school grades. In the case of medical schools, my understanding is that about 2/3 of medical schools use a H/P/F system, and that the first two years' worth of grades don't matter very much for eventual employment for most students. Or so I gather from some googling around. Anyway, the different role of grades seems to explain why policies that generate less accurate individual grades would be more readily tolerated in business schools and medical schools than in law schools.

mls

If the primary concern is to ensure that grades reflect true individual abilities, then collaborative teaching or learning is hardly the problem. Certainly Professors would not rely on a single three-hour examination, or worse a multiple choice examination as a measure of true abilities, which leads me to believe the issue here is not with accurate grades.

Orin Kerr

MLS,

I'm not sure I understand your perspective. Don't you agree that handing in accurate grades is one of the most important tasks of law professors? Our students get jobs or don't get jobs based on the grades we give them, and can determine our students' economic futures. Given that, it seems to me that we have a duty to design our grading system to give students the most accurate individual grades we can. To be sure, there are constraints on that based on time, etc. And we might try some sort of procedure that combines collaborative learning with individualized grading. But it seems to me that designing a system in which individual grades are as accurate as we can make them is really important. Otherwise we're taking jobs from people who deserve them and giving them to people who don't.

mls

I don't much care for these personal debates in the comments but since you posed specific questions, let me offer a quick reply. Our grading methods are imperfect but I don't think there is anything to suggest that the grade on a group project would be any less representative of a student's true abilities than a grade on a single end-of-the semester examination. And I am even more confident that Professors who use multiple choice exams are not only offering a very weak indicator of actual abilities but they are not measuring skills that will be useful in legal practice, but that is a different issue. To the extent that legal practice values group work, which I think it does, then trying to find ways to incorporate group projects seems to make good sense to me, despite the various issues that have been highlighted. But I have to say to suggest that group projects distort the labor market strikes me as quite a stretch. The primary justification for the current way we assess student competency seems to be tradition rather than pedagogy.

Douglas Levene

I am now teaching after many years of practice and I have grave doubts about either the utility of group projects as pedagogical devices or their usefulness in simulating a real practice environment. In the real world, taking large corporate deals as an example, work is organized both hierarchically (partner supervises work produced by senior associate who supervises work produced by associate), and by expertise (e.g.,tax lawyers and environmental lawyers may draft those sections of the agreement). Where different practice groups contribute, usually the overall coordination is in the hands of a senior corporate partner or associate. Notice that there is little peer-to-peer collaboration in this scenario, although you do have lots of lawyers (and non-lawyer experts and clients) contributing to the effort. Moreover, when senior lawyers are looking for junior lawyers to assist them, they want young people who can do the very best work by themselves, before handing it off to a more senior lawyer for review. I'm not seeing how classroom exercises emphasizing peer-to-peer collaboration do anything to prepare young people for this environment.

Scot Roger

This post raises interesting questions. If one of the goals is to prepare students for the actual practice of law, as opposed to mere exposure to legal theory, then we should consider how lawyers engage in their day to day practices. However, I personally believe that one of the foundational tenets expressed by the author is flawed. I would disagree with the assertion that lawyers don't actually practice law collaboratively in "any practical sense."

First, I think many of the arguments focus solely on the lawyer in the law firm setting and ignore the concept of the "in-house" legal role. In essence, the legal role at Google is Google. Obviously, there is a division of labor amongst in-house counsel, but based upon my experience there is a good deal of collaborative practice where members of the legal team routinely work together to problem solve and address new legal issues confronted by the group. One would have to acknowledge that in house counsel are less constrained by concerns of multiple billing parties attending a meeting since they are generally fixed overhead. As an in house lawyer, controlling outside legal costs is an important part of my job. However, I routinely engage outside counsel in collaborative discussions (although generally not involving a Nerf basketball). Often times this means more than one outside counsel is on the clock so the ability of those involved to communicate and work together in an effective manner is vitally important.

Secondly, I do believe there many opportunities for lawyers in a law firm setting to be involved in collaborative work processes. I mention one example above which is perhaps the most important for an outside lawyer - the ability to work effectively with a client counterpart. Also, furthering the litigation example espoused by the author above, I would point out that in complex litigation it is often necessary for multiple parties (especially defendants) to work together to present unified legal strategies and arguments. Using patent litigation as an example, lawyers representing multiple accused infringers with somewhat disparate interests and technologies must work together to distill a unified presentation to the court for the Markman hearing on claims construction. This is a very costly and time consuming process and it is the single most important set of arguments in the case. As a client, I would hope that the lawyers involved would be able to work together to craft compelling arguments and that the sum would be greater than the all the parts.

Finally, and in my mind most importantly, effective collaboration requires effective communication. Effective communication requires effective listening skills which I believe are a set of skills that are uniformly neglected in how we educate future lawyers. As lawyers, we are taught how to spot issues, draw conclusions and persuade others. Rarely are we taught how to listen to others as they identify issues or argue their own conclusions.

Orin Kerr

MLS writes:

*****
Our grading methods are imperfect but I don't think there is anything to suggest that the grade on a group project would be any less representative of a student's true abilities than a grade on a single end-of-the semester examination.
*****

I disagree -- I think there is a lot to suggest it. In my experience, if you talk to students about grades on group projects, they generally report that there is a wide range of abilities and contributions in the group but that they all received the same grade. I think that's to be expected: Groups tend to form based on friendships, and most people don't make friends in law school based on GPA-matching. Anyway, I realize you don't find this issue as interesting or important as I do, so thanks for engaging anyway.

John Steele

Indiana has been using team work for 1Ls for a few years now. It's not perfect, but the 360 peer review within the teams has been a vehicle for students to deal with issues of uneven contributions, etc. As a former hiring partner, when I saw the student reviews I concluded that except for the top 5-10% and bottom 5-10% of the students, the peer reviews would be a more meaningful basis for hiring decisions than GPA is. As just one example, I recall a student whose grades did not particularly stand out but whose peer evaluations screamed, "hire this student."

So I agree that accuracy in grading is vital but I continue to wonder if three hour exams after 14 weeks of soft socratic yields accuracy on what matters most. At my firm we had far more "no offers" on issues of deadlines and team work than on quality of work. And those criteria loomed huge once the lawyers were full time associates as well. I have no doubt that the Indiana 1Ls who had gone through peer review went into summer jobs with a firm sense of the importance of team work.

Now, it may be the case that law schools just don't have the financial or professional resources to teach that way on a large scale. But that's a different question than whether those traits are important to professional success and whether they benefit students.

The odd thing about this conversation is that Dean Gardner began his string of posts with observations about the need for law students to have interactions within the school that approximate the conditions under which the students will work as professionals. This post seems to back way off of the initial proposition.

Steve Diamond

I don't view collaborative or group projects as a substitute for the training that new law school graduates have to receive on the job.

But some kind of introduction to the intensely collaborative, political and interactive process that is the modern law firm, business or government agency seems essential.

Of course there is a hierarchy in all entities but if you do not know how to get along with other people, from word processing to librarians to tech support to clients, you are in trouble.

And I think law faculty who do not build some aspect of this culture into their teaching models, at least in advanced courses, are living in the past and leaving their students in a rather naive state unprepared for the world they step into the minute they leave the warm confines of the campus.

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