| |
| META TOPICPARENT | name="SecondPaper" |
|---|
Control the Narrative | |
<
< | -- By PrashantRai - 02 May 2012 | >
> | When law school began, professors encouraged us to delve deep into the facts of each case we read by spending substantial amounts of time going over the minutia of each case's fact pattern with us. However, as the speed of classes picked up and we came closer to exam time, the previous emphasis on the story behind each decision seemed to disappear. After receiving our first term grades back and reflecting on the most effective way to score points on said exams, it seems clear to me that the way in which professors grade law school exams incentivizes students to focus less on retelling the stories behind the cases and more on creating useful generalizations that one can deploy under time pressure to apply to the facts and produce IRACs of as many issues as possible. This is problematic because story telling is as integral a part of effective lawyering as is issue-spotting. Law schools should provide more opportunities for students to practice their story-telling skills; failing to do so might prove damaging, especially if we are the future of the law. | | | | |
<
< | At the beginning of the year professors forced us to recount the facts of a case in detail before moving on to the legal issues in play. You might say: "and then the plaintiff cut his hand on the gear of the machine," and the professor would promptly correct: "you mean he cut his arm, right?" Initially this seemed tedious to me. His arm, his hand, -- who cares -- let's get to the interesting part - the reasoning. However, I soon changed my opinion. The more cases we studied, the more important the factual details became. Two cases with seemingly identical facts would be decided differently. A closer comb-through usually brought to light a minuscule factual distinction of monumental importance. By continually going through this exercise I came to recognize that each case was different, albeit sometimes only slightly. Each plaintiff and defendant had a unique story, and a general principle could not generate fair outcomes without careful tailoring to the details of each case. | >
> | At the beginning of law school I learned that each case had a unique story behind it and a general principle could not generate fair outcomes without careful tailoring to the details of each case. Professors forced us to recount the facts of a case in detail before moving on to the legal issues in play. You might say: "and then the plaintiff cut his hand on the gear of the machine," and the professor would promptly correct: "you mean he cut his arm, right?" Initially this seemed tedious to me. His arm, his hand, -- who cares -- let's get to the interesting part - the reasoning. However, I soon changed my opinion. The more cases we studied, the more important the factual details became. Two cases with seemingly identical facts would be decided differently. A closer comb-through usually brought to light a minuscule factual distinction of monumental importance. By continually going through this exercise I came to recognize that each case was different, albeit sometimes only slightly. | | | | |
<
< | Yet, as we came closer to exam time and started writing outlines, doing practice exams, and subjecting the material we had learned in the preceding months to the reductive processes taught to pass an exam, the distinct face attached to each case dissipated. The facts became less relevant. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits mattered less and less. Cases that were once stories became bite-sized propositions for use as one sentence citations on an exam. "Peevyhouse establishes that when cost of cover would grossly overcompensate the plaintiff, the measure of expectation damages should be the diminution in value." People forgot that the Peevyhouses' farm was a family farm, and was probably of much greater personal value than the $300 the court eventually rewarded them in damages. The problem is that a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. | >
> | However, as classes progressed, the tone that professors took towards case-facts changed. At the beginning of the semester my Property professor was quite sensitive to the idiosyncrasies of the epic family rivalry surrounding Pierson v. Post. In contrast, by the end of the semester the professor had a penchant for repeating the word "Less" while students recited the facts until they reduced the entirety of the fact pattern to one sentence. It seemed as though the professor was recasting his initial focus on the particularities of each case as simply something he does when introducing students to the law but not a practice he continues once we get the hang of it. Put differently, it seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner. | | | | |
<
< | Just a small note: I think your Peevyhouse example illustrates exactly what is important in good teaching. You're right that students shouldn't just be memorizing bite-sized propositions on an exam. My contracts professor noted how she thought Peevyhouse was wrongly decided: Cost of completion should have been the damages precisely because the family lived on the farm and had a greater personal value in the land. Exams SHOULD allow a student to explore issues like these and not force them to just memorize this propositions to spit out. | >
> | Moreover, as exams loomed and we began to prepare outlines and do practice exams, it became clear that in order to receive good grades, one should spend less time studying the story behind each case and more time thinking of useful ways to generalize about the case so as to apply generalizations to new sets of facts. A common concern during study group was how we were going to make use of all of our notes regarding the facts of each case on the exam. The subtle distinctions between the circumstances surrounding Hawkins' hairy hand and those of the Peevyhouses' coal deposits seemed to matter little for exam writing. As a result, cases that were once stories became bite-sized propositions for use as one sentence citations on an exam. "Peevyhouse establishes that when cost of cover would grossly overcompensate the plaintiff, the measure of expectation damages should be the diminution in value." People forgot that the Peevyhouses' farm was a family farm, and was probably of much greater personal value than the $300 the court eventually rewarded them in damages. The problem is that a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. | | | | |
<
< | This is not just true in exam-preparation but also finds support in the classroom context. At the beginning of the semester my Property professor was quite sensitive to the idiosyncrasies of the epic family rivalry surrounding Pierson v. Post. In contrast, by the end of the semester the professor had a penchant for repeating the word "Less" while students recited the facts until they reduced the entirety of the fact pattern to one sentence. It seemed as though the professor was recasting his initial focus on the particularities of each case as simply something he does when introducing students to the law but not a practice he continues once we get the hang of it. Put differently, it seemed to me as though the professor was telling us that the facts of the case matter less for an advanced practitioner. | >
> | After a year of law school I find myself under-skilled in working with the stories that form the foundation of the cases we read. This is disheartening, as stories can bridge the gap between different people’s world views, and help us understand what life is like for others. Story telling can also be deconstructive. Howard Zinn’s A People’s History of the United States is a great example of someone retelling a story to expose a history of oppression and violence. Stories can also be a form of healing. Story telling can provide an opportunity for people to escape the plight of having to suffer in silence. Stories can put a name to a pattern of discrimination and can as a consequence serve as a rallying point for resistance. Controlling the narrative in a trial is a powerful tool of legal advocacy. Anyone following the Trayvon Martin story can tell you that. I wish we spent more time in law school thinking about finding the stories in cases, and telling the stories that constitute our life experiences. I think it would make us more compassionate counselors and more powerful advocates. | | | | |
<
< | I spoke with a classmate the other day about the use of violence by police officers to subdue people that run away from arrest. He favored a blanket rule that violence (even deadly force) was justified as a law enforcement technique once the police officer knows that the person has broken the law and is resisting arrest (even if the law broken was a misdemeanor and the means of resistance were nonviolent). This seemed to me an absurd position to take, so I asked him what he thought about a situation where a man steals a loaf of bread from a grocery store to feed his starving family. He sees a police officer chasing him and he runs because he knows that if the police officer arrests him then he will go to jail and will therefore have an even more difficult time providing for his family. I asked my classmate if the police officer could gun the man down in the street for breaking the law and resisting arrest. Without a second thought, he said yes. "Proportional response requirements do not create the proper incentives to stop crime from happening." Now, it is of course impossible to trace the mentality of my peer to the impersonal style of case-reading encouraged by the law school. Without doubt, the lack of sympathy that my classmate demonstrated towards the poor bread thief indicated a deep seated psychopathy (this brought the lols) that had nothing to do with his experiences in law school. But I can't help but think that his answer was somewhat reflective of my concern that the way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law. | >
> | There are a few ways that law schools could make an immediate impact on this deficiency. The first is of course for students to stop caring so much about grades. There are several other pieces of writing on this wiki that give good reasons for why law school should place less emphasis on grades. In addition to this suggestion, I think there are a few other ways that law school can facilitate students to practice their story-telling. The first is by easing the time pressure on exams. Note the difference in approach between the memoranda/briefs that we wrote in LPW in comparison to exam answers. I found myself spending quite a bit of time contemplating the factual distinctions between the relevant cases when I prepared my LPW submissions; put differently, it is not that the stories behind cases are irrelevant to legal analysis, it is just that there is no time on exams to contemplate them. Second, exams could ask different types of questions then they do currently. "Examine all relevant issues" is too broad a question and encourages breadth of analysis over depth. Consider the following sample questions: "What is the best argument for why Peevyhouse was wrongly decided?" "Present the facts in a light most favorable to the defendant." "What are some factual issues that the fact pattern fails to resolve that, if you represented the plaintiff, you would want to explore during discovery, and why?" These are questions that one would never see on a contemporary exam but are relevant to testing mastery of the material as well as preparing law students for the tasks they will face upon graduation. The third possible solution is to provide more avenues for students to write in non-traditional ways. This class is a great example. We were not told to write in a particular way; when given this freedom, the students in this class found unique ways to present information that were equally as persuasive and impassioned as the writing we did in other classes. This is just a starting list, but it seems to me that that there are a number of simple solutions to the problem. Currently, law school fails to properly instruct us on the art of storytelling, but to quote Jim Croce in a slightly different context, "It doesn't have to be that way." | | | | |
<
< | When we talk about the facts of a case, we call them just that -- facts. But I prefer to call them stories, because the word "stories" ties the facts to the experiences of a particular person. After a year of law school I find myself under-skilled in working with the stories that form the foundation of the cases we read. This is disheartening, as stories can bridge the gap between different people’s world views, and help us understand what life is like for others. Story telling can also be deconstructive. Howard Zinn’s A People’s History of the United States is a great example of someone retelling a story to expose a history of oppression and violence. Stories can also be a form of healing. Story telling can provide an opportunity for people to escape the plight of having to suffer in silence. Stories can put a name to a pattern of discrimination and can as a consequence serve as a rallying point for resistance. Controlling the narrative in a trial is a powerful tool of legal advocacy. Anyone following the Trayvon Martin story can tell you that. I wish we spent more time in law school thinking about finding the stories in cases, and telling the stories that constitute our life experiences. I think it would make us more compassionate counselors and more powerful advocates. | >
> | Jared and Skylar, thank you for your comments and edits. I incorporated them to the above draft. I left Rohan's comments below this draft because I think that they are important, but I do not have space to incorporate them into my own writing. | | | Eben, I would like to keep working on both of my papers after the formal grading period ends. Thank you for a great semester. | |
<
< | I think this paper is wonderful. You make nice use of stories at each turning point in the paper. I see three main areas for improvement. First, the paragraphs need to be tied together more tightly. Second, the point of each paragraph is a little lost because the topic sentence never appears until the end of the paragraph. The reader doesn't have an idea of the point you are building up to, until the point is made. Third, the concluding sentence at the end of the paper establishes a conclusion – placing more emphasis on studying stories in law school will help us to become more powerful advocates - but doesn’t elaborate on how this will happen. How will finding the stories in cases and talking about our own life stories help us to become more powerful advocates? It’s a nice concept and I agree with you, but I feel like this part of the paper needs to be fleshed out a little more.
I reconstructed what I read to be your outline, so as to help you focus on what I as a reader took away from the paper, and see how to connect each paragraph together more fluidly. I think most of it is really good but the weakest link/place where I got the most lost was the point you were trying to make in paragraph 3. I think if you put a sentence at the beginning of this paragraph that outlines the point you are trying to make in the rest of the paragraph, it might tie in that paragraph a little more nicely.
Para 1: At the beginning of law school I learned each case had a unique story behind it and a general principle could not generate fair outcomes without careful tailoring to the details of each case.
Para 2: As the year progressed I learned that in order to succeed on an exam a grade-focused student has an incentive to ignore the narratives that underlie the cases in favor of a generalized, impersonal approach. I’ll point out that this trap is only a problem if the student remains focused on the grade. A student who ignores grades, as Moglen suggests, might not suffer this fate.
Para 3: The way courses are conducted also supports this view, and furthermore promulgates the idea that this reductive pattern, taking the human story out of a case, is necessary to succeed as a lawyer as well.
Para 4: The way in which the law school focuses on generalization at the cost of personalization might be damaging, especially if we are the future of the law.
Additionally, I made some minor edits to word choices and sentence construction throughout the first two paragraphs, that I think convey your point a bit more succinctly (15 words more succinctly, to be exact). You can change that back to the original if you don't like it.
-- SkylarPolansky
I think it's also interesting to note how much more important facts are than the law in the real world. I'm working for an organization that does criminal litigation right now, and the cases they win are built almost exclusively on their ability to find facts. Brilliant legal rationales almost never come into play. It's funny how we put such a premium on legal analysis in law school and how unimportant it is in the real world.
-- JaredMiller - 07 Jul 2012 | >
> | -- PrashantRai - 09 Jul 2012 | | | Hi Prashant, |
|