Planning Each Charted Course, Each Careful Step Along The Byway: Two Approaches To Teaching The Formation Of Professional Identity To Contemporary Law Students Ian Gallacher & David Thomson ALWD Conference 2013

Presenters David Thomson, University of Denver Presenting on an upper-level Discovery law course that he teaches, which incorporates many opportunities for formation of professional identity Ian Gallacher, Syracuse University Presenting on formation of professional identity in the first year legal research and writing course. ALWD Conference 2013

What is Professional Identity? Professionalism (Behaviors) Professional Identity (Responsibility) ALWD Conference 2013

Professional Identity Formation You can’t “teach” it (we can teach the “floor” – that’s the Ethics class) talking about “above the floor” We have to create “situations” in which formation can occur A proposal: GSFPI An Exercise or Writing Assignment Identification of an ethical quandary by the student A reflection by the student on their decision Some form of feedback and response ALWD Conference 2013

Discovery Law “Whole-course Simulation” Mock Litigation Students in Role Preparing documents each week Confronted with ethical quandaries Must make their own decisions Share that with me privately in a memo I respond with comments and a rubric ALWD Conference 2013

Learning Outcomes Recognize and apply the twelve Federal Rules of Civil Procedure that pertain to discovery Recognize how and when to use the most common litigation documents Prepare such documents in a simulated litigation Interpret discovery responses from opposing counsel Develop and adjust litigation strategy based on what you have learned Identify and evaluate ethical dilemmas that arise in the discovery context Reflect and Form your identity as a legal professional Consider the complexities of, and developing law surrounding, electronic discovery Synthesize your case knowledge at specific points in the litigation Take and defend a deposition Compare options and negotiate a settlement with opposing counsel Agree upon terms for a settlement agreement, and draft it collaboratively. ALWD Conference 2013

Pedagogy New teaching materials Online quizzes Class: Then: DO it Lean back vs. Lean forward Online quizzes Class: Lecture, discussion, workshop Learn the tools, then discuss how to apply them Then: DO it ALWD Conference 2013

DOing Civil Litigation Two unequal parties: Snowboarder vs. Drug Company Plaintiff and Defendant counsel pairs 8 Witnesses. 2 experts, each student plays a part Each student gets part of the file Uses Discovery Tools to learn the rest of the facts Prepares / serves Int., Doc. Req., Req. to Admit Answers each from opposing counsel Conducts a Deposition (with a student court rep.) Settles the case ALWD Conference 2013

Assessment of Formation of PI With each discovery document: Memo to me Approach, Strategy, Ethical issues, Reflection I look for Identification of the ethical issue And I look at the Reflection on the issue Thoughtfully addressed Clearly expressed With depth Showing formation of the student’s PI ALWD Conference 2013

Ethics/Reflection (20%) 1 Identification of ethical issues is poor or lacking (such as objecting to answer a legitimately focused question). Document and memo seems mechanical and lacks reflection. 2 A few ethical identification errors made. Document and memo show some thoughtful reflection. 3 Only one or two ethical identification errors made in the document and memo. Some thoughtful reflection and clarity of purpose is shown in the document. 4 No ethical identification concerns, and the document and accompanying memo show significant thoughtful reflection in preparing the document. 5 This is a student who is becoming confident with discovery, identifies all ethical grey areas, and uses the simulation to reflect with depth and clarity on decisions made while balancing the various competing concerns. ALWD Conference 2013

Model Exercise Learning Outcome: Please review the exercise To experience a mock GSFPI Try to pretend to be a student! Please review the exercise Identify an ethical issue Make a decision as to how you would resolve it Reflect on that decision Discussion ALWD Conference 2013

Some Sample Reflections “The central ethical dilemma of discovery came into sharp focus during this exercise. I felt torn responding to several of the interrogatories. For each, I tried to imagine standing in front of a judge explaining the choice that I made.” ALWD Conference 2013

Some Sample Reflections “Another document I was concerned about producing was the medical record created after the heart attack….In the end, I decided that because this is a highly relevant document I am confident defendants would be able to ultimately obtain, I decided to produce it now. Also, I reasoned that if I objected and then was forced to produce the document, I would be signaling to opposing counsel that the document contained information harmful to my client.” ALWD Conference 2013

Some Sample Reflections “Overall, I feel comfortable that these choices strike a fair balance between duty to court and duty to client.” “I do not want to hide the ball, and would not be able to sleep at night if I was actively hiding information that was clearly discoverable and responsive to their request.” ALWD Conference 2013

Today’s Undergraduates Are Less Professional? 38% observed decline in “professionalism” in last five years 43% reported declining work ethic in past five years

Declining Professional Attributes Acceptance of personal responsibility for decisions and actions Sense of ethics Preparation for classes and assignments Completing assignments on time Competent verbal and written communication

Increase in Negative Behavior Inappropriate appearance Poor work ethic Unfocused and apathetic behavior Sense of entitlement Being disrespectful and rude Lack of time management skills

Study’s Most Significant Results Younger generation less likely to agree that there are generational differences in those who exhibit “professionalism” Younger generation more likely to think that the definitions of professionalism should change to reflect their attitudes and behaviors

Empathy In College Students Is Decreasing Today’s students score 40% lower in empathy than did students of 20-30 years ago

Literary Reading Is Declining Fewer than half of the adult population read literature 10% decline in literary reading between 1982 and 2002

High School Student Reading Skills High school students reading at lower level than before Students being assigned less challenging books to read

Empathy Is Crucial And Is Lacking In Most Of First Year Of Law School Empathetic response to client’s needs while analyzing legal issues is best definition of “practice ready” Empathetic switch is set to “off” in first year of law school Upper level classes reset switch to “on” but that might be too late, especially if we move to two year law degrees

Opportunity For Legal Writing Programs We’re the only ones to speak about empathy in first year of law school Empathy is at the core of good writing We often put students into simulated lawyering situations We’re perfectly placed to begin discussion of professional identity

Syracuse First Year Legal Writing Program Every assignment based on a lawyering problem Assignments are traditional in substance and form, but facts introduce students to variety of lawyering situations which allow students to contemplate issues while working on writing and research skills

Syracuse First Year Legal Writing Program In addition to core learning outcomes of traditional legal writing program, students encouraged to consider issues related to professional identity Allows course to be promoted to students, administration, alumni, and prospective employers as an approach to help students graduate as “practice ready”

Planning Each Charted Course, Each Careful Step Along The Byway: Two Approaches To Teaching The Formation Of Professional Identity To Contemporary Law Students Ian Gallacher (Syracuse) & David Thomson (Denver) ALWD Conference 2013