CHECK YOU THINKING LIKE A LAWYER

Posted in Uncategorized on September 25th, 2010 by bl1y

Over at the Prawf’s Blawg this week, there have been a couple of posts (uno and dos) discussing whether professors should answer should answer substantive questions over e-mail.  And, if you know professors, you can expect that many will balk at the idea of doing any sort of extra work, especially if that extra work involves something other than simply answering a question with a question and telling students it’s their job to teach themselves the law.

Professor Glenn Cohen had this to say about giving substantive answers via e-mail:

I specifically tell students that I do not do substantive questions over emails. I do so for 3 reasons: (1) I get 60 to 100 emails a day without substantive questions, and I worry that I’ll miss substantive questions over email in the shuffle. (2) Office hours are important as actually offering an opportunity to get to know the students on a personal level, which is essential for me when I write letters of recommendation. (3) Perhaps it is the subjects I teach, esp Civil Procedure, but I find the staccato iteration of questions and answers over email is likely to lead to confusion, or at least incompleteness. I’d rather talk through the question with the student to determine what is really afoot, including underlying premises that are off that might not be detectable by the simple email back and forth. I also live in fear that I’ll accidentally screw up an FRCP number or the like in a quick email and get it cut and pasted back into my final exam, and be in a quandary about how to grade it later on. Such mistakes may happen in face-to-face communications as well, to be sure, but I am more confident I can detect it in real time the conversation.
Obviously emails would be quicker for the students and make them more likely to ask more questions. Whether that is a benefit or not depends on some elements of one’s own pedagogical theory, i.e., how much you want students to try and work through their own questions and pare them down versus have easy and constant access to the professor. In my own view the benefits of face-to-face office hours are large enough that I would rather just schedule more of them to be accessible than shift to email questions.

Professor Jason Mazzone (Brooklyn) also gives his reasons for spending the evening watching …whatever TV show is popular with law professors.  Jersey Shore, I guess:

I don’t answer substantive questions by e-mail and if I get them I ask the student to come and see me. This is for three reasons. (1) I have found that unless the student is really on top of things, e-mail exchanges are not pedagogically effective. Often a student isn’t asking quite what the e-mail suggests the student is asking and therefore the answer can create greater confusion. These risks are much lower in a face-to-face exchange where clarifying questions can be asked and a student’s puzzled look observed. (2) I can talk much faster than I can type and so I can answer many more questions in person. (3) Because e-mail is costless, it leads students to think of the professor as the first resource for an answer.

Anyone who has practiced law in the last 10 years can tell you that it is not unusual for a lawyer to receive a question by e-mail and be required to give a substantive response by e-mail.  Anyone practicing in the last 5 years has probably had to give a substantive answer by Blackberry, and is expected to be available for a response at all hours.

Yes, it is true that a face-to-face conversation will probably lead to a better understanding of both the confusion of the student and the answer from the professor.  But, lawyers out in the real world often don’t have the luxury of telling a partner or a client to stop by during office hours later in the week.  We have to figure out what the issue really is, give the answer, and give it such a way that anticipates the person on the other end misunderstanding it.

Electronic communication is a growing part of the legal practice, and with it comes new issues, new problems, and new opportunities.  If a professor refuses to give substantive answers by e-mail, they are not engaging in the real thought processes lawyers deal with, and that should raise serious doubts about their ability to teach others to think like a lawyer.

Perhaps it’s time for an updated version of The Paper Chase:

You teach yourselves the law, but I collect the paycheck. You come in here with a skull full of mush and, if you go the extra mile to teach yourself practical skills in your spare time, you leave thinking like a lawyer.

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