INTRODUCTION This article describes a course students, some are academically dismissed.

1
called the “Art of Lawyering” developed by the The rest languish at the bottom of the class.
Texas A&M University School of Law to help the Historically, at Texas A&M (TAMU) and its
bottom quarter of the 2L class develop the predecessor, Texas Wesleyan,2 the students in
critical-thinking and problem-solving skills they the bottom third after their 1L year are the
should have learned in their first year of law students most likely to fail the bar exam after
school. Students in the bottom quarter of the graduation.3
class at the beginning of their 2L year are most
1 TAMU dismisses students who fail to achieve
at risk for failing the bar exam after graduation.
a GPA of at least 1.90 in the first semester or
The Art of Lawyering gives these students the
maintain a GPA of at least 2.33 thereafter. For
structural framework necessary to solve the sake of simplicity, this paper will refer to both
problems like a lawyer, improve their
entities collectively as TAMU. 3 In 2010, TAMU’s
performance in law school, and pass the bar predecessor commissioned a statistical analysis
exam. The course, in its current iteration, is
of the school’s graduates who failed to pass the
remarkably effective, producing a significant
Texas bar exam on the first try. To some extent,
increase in students’ grade-point averages. This the students who comprise the bottom quarter
article describes the theory, methods, and
of a given law school are a function of the
resources behind the course, and it includes a school’s admission standards. Schools whose
detailed lesson plan so that other schools can
students have lower LSATs and undergraduate
replicate the course and realize similar success.
GPAs can expect students with weaker critical-
thinking skills. And the weaker a student’s
critical-thinking skills, the more likely that student
I. DEFINING THE PROBLEM: UNDERPERFORMING
is to land in the bottom quarter of the class.
STUDENTS WHO FAIL TO MASTER BASIC PROBLEM-
SOLVING SKILLS IN THE FIRST YEAR OF LAW Thus, lower-ranked schools that draw less-
qualified applicants can expect to have a
SCHOOL. Some students fail to master basic
problem-solving skills in their 1L year. Of those bigger problem with their students’ ability to
reason and solve legal problems. But the WORKING TOWARD A SOLUTION: “THE ART OF
problem of underperforming students who LAWYERING” CLASS In 2011, after analyzing the
cannot “think like a lawyer” is not limited to school’s bar-passage data and determining
lower-tier law schools—the problem is even that students in the bottom quarter of the class
getting worse for higher-ranked schools. The after their 1L year would likely fail the bar after
current generation of law students, schooled in graduation, TAMU’s faculty voted to create a
the No-Child-Left-Behind era, is as a whole less mandatory, lockstep
academically qualified than students who
JULY 2010 (on file with author). The analysis
attended law school in the 1970s and 1980s.
showed that nearly half of students in the
bottom third of the class by GPA failed the bar
exam on the first try. Id. at 3, 7. 4 Susan Stuart &
4 Further, law school enrollment has plunged in
the last three years from an all-time high in 2010 Ruth Vance, Bringing a Knife to the Gunfight:
The Academically Underprepared Law Student
to the lowest level in thirty years in 2013.5 And
applications continue to drop: as of August & Legal Education Reform, 48 VAL. U. L. REV. 41,
44–45 (2013) (identifying causes of declining
2014, applications for fall 2014 fell 8.2 percent
student qualifications). 5 According to the
from the previous year.6 As applications fall, so
ABA’s Section of Legal Education and
do admissions standards at some schools.
Admission to the Bar, 52,488 students enrolled in
7 However, students with lower admissions the 2010–2011 academic year—an all-time-
indicators can learn to perform as well on high—but only 39,675 enrolled in the 2013–2014
lawyering tasks as students with higher academic year—the lowest number since 1978.
indicators, but imparting those skills requires
additional effort on the part of the academy. 6 As of February 28, 2014, 39,334 applicants
had submitted 271,556 applications, a 12
Thus, even higher-ranked schools need to
percent decline in applicants and a 12.5
address the critical-thinking and
percent decline in application from 2013.
problemsolving deficiencies of students. II.
Three-Year ABA Volume Comparison, L. SCH.
ADMISSIONS COUNCIL, class for such students in underperforming colleagues were not? Some
their 2L year.8 The new course received the students, of course, find themselves in the
euphemistic name “The Art of Lawyering.”9 The bottom quarter of the class for reasons
school offered the course as an elective in fall unrelated to academic deficiencies: the end of
2012 and spring 2013; the first mandatory a relationship or the death of a loved one just
sections were offered in fall 2013. Offering the before exams, chronic illness, and so on.
Art of Lawyering as an elective for two
Obviously, the class does not address those
semesters before it became a mandatory,
problems. But even these students report that
lockstep class for the bottom quarter served
taking the Art of Lawyering improved their
two important purposes.
analytical and problem-solving skills. While
First, it gave the school time to develop a lesson every student is different, underperforming
plan and determine (to some extent) what students’ academic deficiencies tend to fall
methods worked or did not work for teaching into several broad categories. First, they tend to
remedial problem-solving skills. have a poor grasp of the problem-solving
process and workflows. A typical comment
Second, and more importantly, open
from underperforming students is, “I know the
enrollment for the first two semesters resulted in
material, but I freeze on exams because I’m not
a mixture of students—many underperforming
sure what to do first.” Second, even when
students (whom the school strongly
encouraged to register for the class), but also underperforming students adequately process
a problem and arrive at an answer, they tend
some of their higher-performing classmates.
to have difficulty expressing that answer in a
Comparing the problem-solving skills of students way that will make sense to a reader in a
across a spectrum of abilities helped the school hurry—that is, a law professor or bar-examiner
identify and target the deficiencies holding grading many exams, or a judge wading
back the less-proficient students. In other words, through a stack of briefs. Though this problem is
what were the better students doing that their sometimes rooted in deficiencies in basic
writing skills—grammar, syntax, and squander time writing detailed factual
punctuation—it most often grows from weak summaries of the problem’s precedent cases.
organizational skills. Third, some Finally, some underperforming students lack the
underperforming students write adequate or basic skills necessary for academic success. For
even superior essay-exam answers but struggle example, they may suffer from slow reading
with multiple-choice exams. Answering speed and comprehension, poor note-taking
multiple-choice questions is not a key lawyering skills, a careless attitude toward following
skill, but it is key to passing some law-school instructions, and extreme procrastination. The
courses and all bar exams. In the end, the Art of Lawyering addresses all of these
process used to answer a multiple-choice deficiencies. Most underperforming students
question is the same as the process used to have a combination of deficiencies, and part
analyze any other 8 of the challenge is determining how to help
9 The name “Art of Lawyering” was the each student on a case-by-case basis.
brainchild of Everett Chambers, J.D., who at the
time was director of TAMU’s academic-support
program. Mr. Chambers now the Director of III. COURSE OBJECTIVES AND METHODS
Institutional Programs at BarBri, Inc. He was The ultimate goal of the Art of Lawyering
instrumental in creating the Art of Lawyering is to identify and remedy whatever deficiencies
class and developing its early lesson plans legal prevent the students from performing at a
question; the only difference is the format of the higher level. More specifically, the class
answer: picking the correct answer from a list teaches students to solve problems the way
versus writing an essay to explain the correct lawyers solve problems, and apply those
answer. Fourth, most underperforming students techniques to law school exams, the bar exam,
have poor time-management skills. If given, and, eventually, the practice of law.11 The
say, ninety minutes to answer an MPT-type class is not strictly academic support; nor is it a
problem,10 underperforming students will rehash of the 1L legal analysis, research, and
writing (LARW) classes. But it does combine possible processes or even several, but one:
aspects of both of those classes. The Art of one problem-solving process that will work
Lawyering’s basic plan is simple: the students under most circumstances likely to arise in law
solve problem after problem of increasing school and
complexity. Repetition is the crux of the
10 The MPT is the Multistate Performance Test,
course’s method; the more problems the class part of the Texas (and most other states’) bar
can work through, the better. Unlike the five or
exam. This paper discusses the MPT and in more
six problems spread over two semesters in first-
detail in Part V on the bar; one process that
year legal analysis and writing classes, Art of
students can turn to without having to agonize
Lawyering students write twenty or more
over which process best suits a particular
memos in a single semester. The memos are problem.
shorter and less complex than a full-blown
LARW office memo, but brevity means more The problem-solving process taught in the Art of
memos and more opportunities to work through Lawyering has six steps:
the problem-solving process—and less time (1) Identify the issue or the call of the question;
grading for the professor. The Art of Lawyering
(2) Identify the applicable rule or rules;
does not teach doctrinal law (except for the
two necessary pieces, criminal law and (3) Parse the rule into its component parts—
contract law, which are necessary to the usually elements or factors or a combination of
multiple-choice-question part of the class). The the two;
problem-solving process is the class’s focus. Of (4) Match the hypothetical facts to the parts of
course, the problem-solving process can vary the rule. What part of the rule does a given fact
wildly from lawyer to lawyer or student to “trigger” or implicate? Students should attempt
student; there is not one problem-solving to “find a home” for every fact; that is, identify
process but many alternative processes. The the part or parts of the rule that are
goal of the Art of Lawyering is not to teach all
conceivably relevant to that fact. If a fact has This step-by-step process gives them a
no “home,” it is probably irrelevant; roadmap to reach the destination, a plan they
can use to solve practically any legal problem
(5) Write a rule-based analysis—that is,
in law school, on the bar, or in the practice of
a. The parts of the rule should dictate the law. The Art of Lawyering works on each step
writing’s structure. separately and in combination by solving
b. Discuss one part of the rule at a time, and problem after problem until the steps are innate
to the students’ thought process. While
c. Discuss all of the facts relevant to that part of
underperforming students struggle with all six
the rule before moving onto the next;
steps, the third and fourth are the most
(6) Draw an ultimate conclusion only after troublesome—largely because the students
completing the first five steps. Writing is a form skip these steps altogether and go directly from
of thinking, and a conclusion is more likely to be identifying the rule to writing an application.
correct if drawn after the bulk of the writing Therefore, the Art of Lawyering emphasizes
process is complete. With regard to writing the steps three and four. Skilled problem-solvers can
analysis, the Art of Lawyering uses the standard often parse a rule and match the facts to the
CREAC (Conclusion, Rule, Explanation, relevant elements or factors. But for
Application, Conclusion) paradigm. underperforming students, performing these
This process is neither novel nor unique. steps on paper or a white board—seeing the
Most lawyers and law students use this process process instead of merely thinking or talking
or something very much like it to analyze legal about it—is crucial. A simple two-column table
problems, whether consciously or will suffice. Students write the elements of the
unconsciously. But breaking the process into rule down one column, and the related facts
these discrete steps is a revelation to down the other, like this:
underperforming students. They know what the TABLE 1: ISSUE/CALL OF THE QUESTION Rule Facts
goal is, but they do not know how to get there. First element Second Element Factor 1
Factor 2 Third element Facts that trigger first Explanation, Application, Conclusion)
element Facts that trigger second element paradigm.
Facts relevant to factors
Facts that trigger third element Once the
The CREAC VS THE SIX STEPS:
students have the rule parsed and the facts
matched with the relevant elements and The problem-solving process taught in the Art of
factors, the chart is an outline for step five, Lawyering has six steps:
writing the analysis. Students learn to write a (1) Identify the issue or the call of the question;
separate paragraph or paragraphs for each
(2) Identify the applicable rule or rules;
major part of the rule and the related facts.
When finished with that part, they write a brief (3) Parse the rule into its component parts—
conclusion, start a new paragraph, and discuss usually elements or factors or a combination of
the next part of the rule and its relevant facts. the two;
They continue until finished discussing all parts (4) Match the hypothetical facts to the parts of
of the rule related to the issue. Again, this the rule. What part of the rule does a given fact
method is nothing revolutionary; it is what “trigger” or implicate? Students should attempt
successful lawyers, professors, judges, and law to “find a home” for every fact; that is, identify
students do already. But for underperforming the part or parts of the rule that are
students, learning this process and applying it conceivably relevant to that fact. If a fact has
explicitly can be transforming. It allows them to no “home,” it is probably irrelevant;
see and understand what is otherwise a “black
box,” opaque process and, eventually, master (5) Write a rule-based analysis—that is,
the process themselves. With regard to writing a. The parts of the rule should dictate the
the analysis, the Art of Lawyering uses the writing’s structure.
standard CREAC (Conclusion, Rule,
b. Discuss one part of the rule at a time, and
c. Discuss all of the facts relevant to that part of on laptops, they can easily copy the conclusion
the rule before moving onto the next; from the end of an essay to the beginning with
a couple of keystrokes. Because CREAC yields
(6) Draw an ultimate conclusion only after
completing the first five steps. Writing is a form a more lawyerly work product, the Art of
Lawyering uses CREAC instead of IRAC.
of thinking, and a conclusion is more likely to be
correct if drawn after the bulk of the writing
process is complete IV. SPECIAL CHALLENGES PRESENTED BY THE ART
Students are encouraged to omit the OF LAWYERING The Art of Lawyering poses
Explanation when possible and to always omit three special challenges for the professor.
the naked facts—facts regurgitated from the 1. The first challenge is the most obvious:
hypothetical. Many underperforming students
Because the enrollment is limited to (and
are accustomed to hearing that their
required of) the bottom quarter of the 2L
Applications lack depth. The problem is usually
cohort, every student in the class is, by
that they mistake reciting the facts of
definition, one of the worst students in the
precedent cases or the naked facts of the academy. Everyone wants to teach the best
hypothetical for analysis. Forcing them to follow
and the brightest; interacting with those
the six step problem-solving process and omit students is intellectually stimulating and
the Explanation does a lot to remedy this
generally pleasant. Teaching the students at
problem. Note that the Art of Lawyering teaches
the opposite end of the spectrum can be a
CR[E]AC (without the E, usually), not IRAC (Issue, grind. Professors must be prepared to repeat
Rule, Application, Conclusion). The advantage
themselves. They must be prepared to spend
to IRAC, and the reason it is the go-to paradigm hours dissecting on paper or a whiteboard a
for exam writing, is that the writer can start
process that can be performed in their head
writing the analysis before knowing what the
in minutes. They must be prepared to make
conclusion is. But lawyers do not write that way,
the same corrections and critiques on the
and in an age when most students take exams
 same student’s memos again and again until make the required effort or participate in
finally, hopefully, the critique sinks in. But the class. And at the end of the semester,
results can make the effort so worthwhile. The resentful students will vent their spleen at the
“a-ha” moments; the little epiphanies; the professor in their student evaluations. The
steady progress toward competence, if not professor can do three things to combat
excellence; the rise in students’ GPA; the seething resentment in the class. One is
grateful students thanking the professors for capitalizing on public relations. Students who
taking the time to change their academic profit from the Art of Lawyering—and most
trajectories. These are the reasons that many do—become goodwill ambassadors for the
professors started teaching in the first place, course. The more they tout (APPLAUD) the
and the Art of Lawyering pays those success achieved because of the class, the
dividends more often than most other less future Art of Lawyering students will resent
classes. having to take the class. Written testimonials
2. The second challenge is the resentment can help. At TAMU, the Associate Dean for
students feel when required to enroll in the Academic Affairs saves.
class. Many underperforming students refuse Indeed, the inability or refusal to self-
to acknowledge that anything is wrong with
assess performance is a trait common to most
their academic performance. Further, they Art of Lawyering students. According to their
feel stigmatized because enrollment in the
mandatory self-assessments, many students
Art of Lawyering brands them as bottom
thought they were keeping up or even
quarter students in the eyes of their
excelling in law school right up until they
classmates. TAMU’s Associate Dean for
received their first semester grades. See infra
Academic Affairs is beset by students trying Part VI.A. 13 One way to combat this perceived
to get out of the Art of Lawyering at the
stigmatization is to open enrollment in the Art of
beginning of the semester. During the Lawyering to all students while requiring it for
semester, resentful students are less likely to
the bottom quarter. TAMU considered this
approach, but the increased enrollment in the students who try to wriggle out of the class.15
course would require either larger sections— Second, starting the semester with an
which would inhibit much of the personal assessment—an MPT exercise on the first day of
professor-student interaction essential to the class—followed by immediate written
class—or more sections—which would require feedback and an in-class demonstration of
more professors willing to teach the class. 14 I how much more efficiently a lawyer would
typically receive very positive evaluations in my solve the same problem induces some much-
LARW classes (legal analysis, research, and needed humility and reduces resentment.
writing (LARW) classes)—mostly fours and fives
on a five-point scale for various parameters of
teaching effectiveness. The first semester TAMU The idea is to quickly change students’
required the Art of Lawyering for bottom- attitude from “this is a waste of my time” to
quarter students, the students gave me— by “maybe I can learn something here after all.”
far—the worst evaluations I have ever received, Think of the first two classes as “shock and awe”:
including many ones and twos. shock at having an “exam” on the first day of
class, followed by awe when shown how easy
One student was frank in his
the solution could be if students follow the
handwritten comments: The low scores he gave
methods the class will teach in the following
me did not reflect my teaching or the class
weeks. The “awe” part does much to quell
content, but the fact that he was required to resentment. The third way to combat
take the class at all. Those who plan to teach
resentment is to engage every student in every
this class should grow a thick hide. After a class. Do not let students hide in the back
complete overhaul of the lesson plan and class
row.16 Forced participation means tepid (LUKE
methods to the ones described in this article, I
WARM) participation at first, but even tepid
received much higher evaluations from Art of students develop some enthusiasm eventually,
Lawyering students. emails from grateful former
and enthusiasm is the bane of resentment. The
students to show incoming Art of Lawyering final and perhaps most daunting challenge of
the Art of Lawyering is the workload on the or after in-class oral arguments in lieu written
professor. Keeping up a steady flow of exercises papers.18 Finally, keeping up with the workflow
is one hurdle.17 The much higher hurdle is is vital. Falling behind on grading makes the
grading student papers in a timely manner. burden seem even more onerous, and it
Even in a class limited to fifteen students, defeats the goal of prompt feedback to every
grading two memos per student per week adds student on every assignment. Thus, while the
up to many hours sweating over a blue pencil special challenges presented by the Art of
and a rubric. Ideally, students should receive Lawyering cannot be eliminated, they can be
feedback on the last project before they start managed. Knowing what the challenges are
the next project. That means the grading of any be for two examples of such testimonials. 16
given paper must be completed on a very tight Students have assigned seats in my classroom,
schedule—as little as one day, and never more but I require the rows to rotate forward every
than four days. For professors who teach other other class so that students who chose seats in
classes and have service and scholarship the back row the first week will be in the front
obligations, the time commitment is a huge row a couple of weeks later. 17 See infra Part
burden. There is no real solution to the time V, The Art of Lawyering Toolbox, for sources of
problem, but some practices can make the ready-made exercises. 18 See infra Part V.F.
problem manageable. First, limit sections to no fore they arise and having a plan for dealing
more than fifteen students. Fewer students with them prevents them from thwarting the
mean fewer papers to grade and less time course’s goals.
spent grading. Second, adopt in-class exercises
that do not require additional grading. Students
should submit written formative assessments for
individual feedback from the professor at least V. THE ART OF LAWYERING TOOLBOX The Art of
once per week, but sometimes the professor Lawyering draws on a variety of resources and
can deliver feedback during in-class discussions methods to help underperforming students
improve their problem-solving skills. The high The problems within a section increase in
number of in-class exercises and formative difficulty from one to the next. Annotated
assessments—as many as four per week— sample answers to the even-numbered
demands a ready supply of high-quality problems appear at the end of the text;21
materials. The professor also needs to be ready answers to the odd-numbered problems
to use tools and techniques that break the appear in the teacher’s manual, which also
problem-solving process into discrete steps so includes sample rubrics for the different types of
that students can master one step at a time. exercises.22 Because the students have the
The following is a description of the most answers to the even problems, those problems
important materials and tools in the Art of are best assigned as in-class exercises. The
Lawyering toolbox. A. Hill & Vukadin’s Legal ready-made problems and sample answers in
Analysis: 100 Exercises for Mastery19 Cassandra 100 Exercises greatly ease the burden on the
Hill and Katherine Vukadin’s Legal Analysis: professor. Without this resource, the professor
would find it impossible to maintain the steady
flow of exercises necessary for student success.
100 ercises for Mastery is an excellent source of
B. Multistate Performance Tests The Multistate
ready-made problems. It is the only book
Performance Test (MPT) is a component of most
required in the Art of Lawyering, and it forms
state’s bar exams.23 The test “promises to be
the backbone for much of the course. As
the name implies, the book comprises 100 ‘the best measure of one’s ability to perform
as an attorney, and . . . the most realistic
legal analysis exercises ranging from simple
to complex, Broken into sections on: regarding case situations when compared to
the MBE and essay portion of the [bar]
1.Basic critical thinking,
examination.’
2.Basic legal analysis,
3.Deductive reasoning,
4.Analogical reasoning, and
5.Statutory analysis.
According to the National Council of Bar students who underperform on the MPT are
Examiners, the MPT requires examinees to: likely to underperform on the bar exam. For this
reason, too, MPT problems are a perfect fit for
(1) Sort detailed factual materials and separate
relevant from irrelevant facts; the Art of Lawyering’s goals. Further, the MPT
furnishes all the law a student needs to solve the
(2) Analyze statutory, case, and administrative problem. A student need not memorize any
materials for applicable principles of law; doctrinal law to succeed on the MPT. Thus, the
(3) Apply the relevant law to the relevant facts MPT emphasizes the same thing the Art of
in a manner likely to resolve a client’s problem; Lawyering emphasizes: problem-solving
process and skills. An MPT problem comprises a
(4) Identify and resolve ethical dilemmas, when
“File” and a “Library.”27 The File includes an
present;
assigning memorandum from a senior partner
(5) Communicate effectively in writing; and that sets out the scope of the assignment,
(6) Complete a lawyering task within time identifies the specific task to be completed
constraints. (e.g., write an objective memo or draft a
persuasive brief), and includes specific
In other words, the MPT tests the same instructions for the examinee’s work product
skills emphasized in the Art of Lawyering class. (e.g., include descriptive headings for each
Therefore, MPT problems are an excellent way section).28 The other documents in the File
to assess and develop important lawyering skills contain all of the facts of the case.29 These
in all law students, and especially in documents include ones a lawyer would find in
underperforming students. Although the MPT a real case file, such as letters, wills, depositions,
comprises only 10 percent of the Texas Bar emails, and the like.
Exam,26 some have argued that the
performance of TAMU graduates on the bar Dakota, Northern Mariana Islands, Ohio,
exam as a whole has a strong correlation to Oregon, Palau, Rhode Island, South Dakota,
their performance on the MPT. In other words, Tennessee, Texas, Utah, Vermont, Washington,
West Virginia, Wisconsin, and Wyoming. course of the semester. MPT problems from prior
Multistate Performance Test, Jurisdictions bar exams are widely available on the
Administering the MPT, NAT’L CONF. BAR Internet—many from the National Council of
EXAM’RS, Multistate Performance Test, Bar Examiners’ own web site.
Preparing for the MPT, NAT’L CONF. BAR
EXAM’RS [hereinafter Preparing for the MPT],
C. Multiple-Choice Questions Although the
The Library contains all of the law relevant to pedagogical assessment value of multiple-
the problem.30 Documents in the Library may
choice question (MCQ) tests in higher
include cases, statutes, regulations, or rules. education, and especially law school, is subject
Some of the Library documents may be
to debate,33 MCQ tests are ingrained in law
irrelevant to the problem.31 synthesizing a rule
school and the bar exam. Some
from the Library components and analogical underperforming students excel at MCQ tests,
reasoning often play a significant role in solving
but most are as bad at MCQ exams as they are
MPT problems. Because the skills tested on the at essay exams. Lack of substantive
MPT closely match the skills practiced in the Art
knowledge—the failure to master the tested
of Lawyering, MPT problems play a significant
subject matter—is the most obvious reason for
role in the class. On the first day of class,
poor MCQ performance, but it is not the only
students solve an MPT exercise that has been
reason. Herbert Krimmel, a professor at
modified for length and complexity so that Southwestern Law School, has identified five
students can complete (or stand a reasonable
reasons why students underperform on MCQ
chance of completing) the exercise in the exams: (1) test anxiety; (2) using intuition rather
seventy-five minute class time. The summative
than logic to choose answers (“it feels like the
assessment is also an MPT problem. Comparing
right answer”); (3) using logic to narrow the
a student’s performance on the incoming MPT possible choices down to two but then guessing
and the final exam allows the professor to assess
between those two (which Krimmel identifies as
how much the student has improved over the the most common problem); (4) giving up on
“difficult” questions, e.g., those with a long or larceny and embezzlement from criminal law,
complex stem or paired true/false questions; and offer and acceptance from contract law.
and (5) “buying into dubious ‘rules’ of test In an early iteration of the class, we required
taking,” e.g., automatically rejecting all “all of students to use their 1L notes and outlines on
the (noting research that indicates students are these topics as their source of doctrinal law. This
more likely to employ “surface-learning” was a disaster. The students’ notes were
approaches when preparing for MCQ exams inadequate, as one might expect of notes from
and that “deep learning” is associated with students in the bottom quarter of the class.
poorer MCQ results); Beverley Steventon et al., Asking students to supplement their notes with
Moving the Law School into the Twenty-First commercial outlines did not improve the
Century—Embedding Technology into situation. In the current course iteration, to
Teaching and Learning, 38 J. OF FURTHER AND ensure all students are starting with the same
HIGHER EDUC. 107, 109 (2012) (recognizing body of substantive law from a reliable, quality
arguments that MCQ tests are mere “memory source, we give the students commercial
tests” that fail “to encourage the student to outlines of our own choosing. Many
demonstrate competency in applying law to commercial outlines are available to students
factual situations as well as critically analyzing a free of charge from Westlaw.35 While the
set of legal rules.”). outlines vary in quality and the professor will
want to curate the collection or direct students
above/none of the above” choices.34 The Art
to a specific source, they are a good starting
of Lawyering addresses all five problems. The
place. The professor also needs a bank of bar-
Art of Lawyering focuses on process, not
exam-caliber MCQs related to these doctrinal
substantive knowledge. But to practice the skill
of answering MCQs, students need a body of areas. As with MPT problems, MCQs from prior
bar exams are readily available online and
substantive law on which to draw. The MCQ
portion of the Art of Lawyering draws on two from commercial vendors, and many questions
appear on the National Council of Bar
relatively narrow slices of doctrinal law—
Examiners’ website.36 A week before the class https://lawschool.westlaw.com/marketing/dis
is ready to begin the MCQ part of the course play/SG/28 (last visited Dec. 29, 2015). 36 See
the professor distributes the outline on larceny Study Aids, NAT’L CONF. BAR EXAM’RS (last
and embezzlement to the students. Students visited Dec. 29, 2015),
should study them carefully and commit the http://www.ncbex.org/study-aids/. For
doctrinal law to memory. The class then works example, the Google search query
through a series of MCQs related to larceny “site:ncbex.org mbe larceny” yields several
and embezzlement. The method for answering MBE exams with larceny questions. Substituting
MCQs that yield the best, most consistent result “embezzlement,” “offer,” or “acceptance” for
is simple: students should not look at the choices “larceny” yields MCQ questions of the other
until they have analyzed the stem and know doctrinal topics of interest.
what the correct choice should be. This is
answer will be the one closest to their own
contrary to the approach most students take, written answer—assuming, of course, the
namely, looking at the choices before reading
students applied the right legal doctrine to the
the stem. The best way to break students of this
facts in a logical way. The following is an
habit is to give them an MCQ problem with the example of a “larceny/ embezzlement”
choices removed. Force them to analyze the
question with the answers removed: Arnold and
problem just as they would any other legal Bob were cousins. Arnold was a rich man, Bob
problem. The process is the same. After students
a poor one. Bob often admired Arnold’s
have written a short answer to the question,
possessions—his house, car, clothes, and so on.
show them the choices. The correct
In particular, Bob admired Arnold’s large
34 Herbert T. Krimmel, Dear Professor: Why Do I
expensive watch. Bob frequently commented
Ace Essay Exams but Bomb Multiple Choice that he wished he had one like it. Arnold was a
Ones?, 63 J. LEGAL EDUC. 431, 443–46 (2013). 35
kind man, and he wanted to please his cousin,
See, e.g., 1L Outline Shells for Foundation Law so he decided that he would give the watch to
School Courses, THOMSON REUTERS WESTLAW,
Bob for his birthday the following week. A few
days before Bob’s birthday, Arnold and Bob with intent to permanently deprive the true
were at a family reunion held in a park. Arnold owner. Bob picked up the watch Even the slight
took his watch off and left it on a blanket when movement was asportation
he went off to join a touch football game. Bob The watch is Arnold’s personal property
strolled by, saw the watch, and decided to
steal it. He picked up the watch, but before he Bob intended to “steal” the watch, which
could pocket it, Arnold returned. When Arnold implies permanence Embezzlement is the
saw Bob holding the watch, he said, “Bob, I fraudulent
know how much you like that watch, and I have conversion of another’s personal property by
been planning to give it to you for your a person in lawful possession of that property.
birthday. Go ahead and take it now.” Bob said, No evidence of fraud
“Thank you!” and kept the watch. What crime,
Bob did convert the watch
if any, has Bob committed? Explain your
answer. Using the substantive law from the The watch is Arnold’s personal property
larceny/embezzlement outline, students should Bob was not in lawful possession
immediately realize that the problem triggers
the larceny/embezzlement rules and work Because the facts support the elements of
toward a solution just as they would solve any larceny but not embezzlement, Bob committed
other legal problem—connect the facts to the larceny. Now, add in the MCQ choices: Bob
elements of the rules and determine whether has committed: (A) Larceny (B) Attempted
the facts satisfy the elements: TABLE 2 Rule Facts larceny (C) Embezzlement (D) No crime. The
Larceny is the taking and carrying answer is easy: (A), because Bob’s actions
away/asportation of the another’s personal satisfy the elements of larceny. Choice (B)—
property which would confuse some students if they
read the choices first—is obviously incorrect
because our analysis proves that Bob’s actions
satisfy all of the elements. The foregoing
example was simple; indeed, it is the first MCQ between the precedent cases and the facts of
we use in the Art of Lawyering. The questions the “client” case (the case being analyzed,
get progressively more complex, but the argued, or decided). These similarities and
process of arriving at the correct answer distinctions form the basis of analogical
remains the same. After working on reasoning. The case grid is particularly useful in
larceny/embezzlement questions for two the Art of Lawyering because as a graphical
classes, students move on to offer/acceptance tool it allows a student to see and physically
questions for two classes. The summative manipulate parts of a problem that would
assessment for the MCQ part of the course is a otherwise exist only in the student’s mind.
MCQ midterm comprising ten Bringing these elements into a visible, tangible
larceny/embezzlement and ten medium makes them much easier to
offer/acceptance MCQs. Students who manipulate, and it allows the professor to show
struggled with MCQ exams even when they the students concepts that are difficult to
knew the underlying substantive law realized describe in the abstract. Other professors have
significant gains in their MCQ performance devised similar methods of analyzing legal
after the Art of Lawyering. D. The Case Grid: A problems by arranging cases on tables or
Graphical Tool to Facilitate Analogical grids.38 The method described here is different
Reasoning The “case grid” is a tool that because it specifically addresses the
facilitates analogical reasoning. Analogical challenges of analogical reasoning when
reasoning is a fundamental characteristic of weighing several precedents against the client
writing briefs and opinions,37 and many facts.
students, especially underperforming students,
37 The Case Grid: How It Works and How to Use
fail to master this skill as 1Ls. The case grid allows It The case grid is a chart that analyzes a single
a student (or lawyer, or law professor, or judge)
issue. This is important; a case grid that attempts
to easily identify similarities and differences to analyze multiple issues at once is too
between several precedent cases, and
confusing and cumbersome. The grid is broken
into horizontal rows and vertical columns. The cells are empty because not all cases contain
top row lists the names of the cases being facts relevant to every factor of a given rule.
analyzed, one case per column. The client case When a case does not discuss a particular
is the last case listed. The left-hand column lists factor, the cell for that factor should be left
the elements or factors discussed in the cases, blank. Blank cells on a completed case grid
plus other pertinent labels like “outcome” or also serve as a reality check; if only one of
“holding” and “reasoning.” The cells where the several cases discusses a particular factor, and
rows and columns intersect contain the facts the cells for the other cases are blank for that
from the column’s case relevant to the row’s factor’s row, the factor is probably not
factor. A completed case grid—comparing important. The “Summary of Reasoning” row is
three factors from three precedent cases— optional; it is useful in some analyses but not
looks like this: TABLE 3 Case A Case B Case C others. A key benefit of the case grid is its
Client Case Factor 1 Facts from case A related flexibility; the writer can add or omit rows as the
to Factor 1 Facts from case B related to Factor situation requires. 2. A Sample Case Grid Using
1 Client facts relevant to Factor 1 Factor 2 Real Cases Now consider a case grid
Facts from case A related to Factor 2 Facts incorporating a hypothetical client case and
from case C related to Factor 2 Client facts real precedent opinions. 39
relevant to Factor 2 Factor 3 Facts from case A 39 This hypothetical’s facts and cases are
related to Factor 3 Facts from case B related to
drawn from a memo-writing problem Professor
Factor 3 Facts from case C related to Factor 3
Carol Pauli wrote for our students last fall. Amy
Client facts relevant to Factor 3 Summary of
is the pledge captain of a sorority at a North
Reasoning (optional) Summary of Case A
Carolina college where she and Betty are
reasoning Summary of Case B reasoning students. Betty, a freshman, pledged the
Summary of Case C reasoning n/a Outcome
sorority. In late October, Amy planned a
Case A holding Case B holding Case C pledge event to be held at a state park in South
holding Client prediction or conclusion Some
Carolina. There is some evidence North
Carolina law enforcement was cracking down compliance with the kidnapper’s wishes.42
on hazing, and a recent article in the school Hughes told the victim he knew a friend of hers
newspaper spotlighted the school’s hazing and would drive her to see the friend.43 When
problem and its commitment to stop hazing. the victim got into Hughes’s truck, he drove her
Betty was initially reluctant to attend the event to a cemetery across the state line, where he
because midterm exams loomed, but she beat her savagely.44 Held: Hughes inveigled
eventually agreed to attend after Amy assured the victim.45 • United States v. Macklin:46 A
her the event would be “mostly fun.” Amy and child ran away from home and later
the other pledges had already left campus, so encountered Macklin, a drifter.47 Macklin
Betty drove herself to South Carolina. When made a vague promise about giving the child
Betty arrived at the park, Amy forced her and a bike after traveling to New York City, but
the other pledges to drink large quantities of made no other representations to the child.48
alcohol, perform calisthenics, strip and wrestle The two traveled cross-country together.49 The
one another in the mud, and remain in the park child, unharmed, later decided to return
all night despite a cold, heavy rain. Eventually, home.50 Held: Macklin did not inveigle the
Betty tried to leave the park and return to her child.51 The also reasoned that the child’s
car, but she failed. A park ranger found her attraction to Macklin’s vagabond lifestyle did
many hours later huddled under a bush, naked not constitute inveiglement.52 • United States v.
and hypothermic. The question is whether Amy Boone:53 Boone falsely told his victim he owned
violated the Federal Interstate Kidnapping a marijuana farm in a neighboring state.54 The
Act.40 Specifically, we need to determine victim agreed to go with Boone to the
whether Amy “unlawfully inveigled” Betty into marijuana farm, and Boone drove them across
traveling to South Carolina. Research finds the the state line in the victim’s car.55 When they
following potentially relevant cases: • United reached the place where Boone said the farm
States v. Hughes:41 “Unlawfully inveigle” means was, Boone robbed and killed the victim.56
the kidnapper used deceit to lure a victim into Held: Boone inveigled the victim.57 • United
States v. Wills:58 The victim witnessed Wills the precedent cases and the client case. The
commit a burglary.59 Wills later lured the victim case grid makes these processes much easier.
from Virginia to Washington, D.C. with the A complete case grid for this problem appears
promise of a nonexistent job opportunity.60 The in Appendix I
victim drove himself to D.C. and was never seen
again.61 Held: The defendant need not
accompany the victim across state lines to be From the case grid, several relevant significant
guilty of kidnapping by inveiglement.62 • points emerge: • Inveiglement requires an
United States v. Garza-Robles:63 The victim, a attempt at deception, and the deception must
drug dealer, lost a large shipment of succeed. • Like Boone, Hughes, Wills, and
marijuana.64 Garza-Robles, a member of the Garza-Robles, Amy attempted to deceive
drug cartel that owned the lost drugs, told the Betty; she said the initiation would be fun, but
victim he needed to travel to Mexico to explain she knew (because she planned the event)
the problem to the cartel boss.65 The victim that it would be painful and humiliating. • The
knew that something worse than merely fact that Betty drove herself to South Carolina is
“explaining” awaited him in Mexico, but he irrelevant; lack of accompaniment does not
went anyway because he knew the cartel affect the outcome. • The real question here is
would otherwise kidnap or kill his family.66 Held: whether Amy’s deception succeeded, as in
The victim was not inveigled, but he was “seized Boone, Wills, and Hughes, or whether it failed,
by fear” (a statutory alternative to as in GarzaRobles, because Betty knew—
“inveigle”).67 This example uses five precedent maybe by virtue of the school paper—that a
cases and the client case. Many law students, sorority initiation in the woods at night would not
and especially underperforming law students, be “mostly fun.” • Amy’s best
will have difficulty inducing and synthesizing a counterarguments are (1) Betty knew
coherent rule for what constitutes inveiglement something bad was likely to happen and (2)
and identifying significant analogies between Betty was drawn to the event by the allure of
the “sorority lifestyle,” as the child in Macklin
was drawn by the allure of the vagabond problems from the analogical reasoning
lifestyle. • The first counterargument merits section of the Hill & Vukadin book.68 The
serious consideration, but the second is likely to professor should introduce the case grid early in
fail because Macklin is distinguishable: Macklin, the semester. The second session—when the
unlike Amy, did not attempt to receive the class dissects the MPT from the first class69—is
victim. • On the whole, the case is more similar ideal.
to Boone, Hughes, and Wills, but Betty’s
E. Frequent, Timely Feedback Solving many
testimony about what she thought was going to
problems is by itself not enough to raise the skills
happen makes or breaks the case. Developing
of underperforming students. These students
this bullet list into a working outline is a very short
need feedback and critique on every exercise,
step. Indeed, the bullet list is an outline on which and they need it before they undertake the
a writer could easily frame an analogical
next exercise. That means the professor must be
analysis of Amy’s case. It is, of course, possible prepared to read and critique student memos
to get to the same point without using a case
with a very short turnaround time. Assuming
grid, but the case grid makes it much easier to
students write two out-of-class memos per
keep track of the important parts of the week, the professor will have at most three days
precedent cases, to compare those cases to
to grade and return each batch of memos so
one another, and to compare them to client the students can ingest the critique and make
facts. Students who struggle with analogical
appropriate modifications on the next memo.
reasoning receive the case grid as an
The grading burden can seem crushing,
epiphany, a revelation that makes something
especially if the professor falls behind and the
that was almost hopelessly difficult for them
ungraded assignments start to pile up. Two
approachable and solvable. As such, the case practices assure grading efficiency. First, a
grid features a prominent role in the parts of the
good rubric makes the chore of assessing a
Art of Lawyering that require analogical particular batch of memos much less daunting.
reasoning, especially the MPT problems and the
If the grader knows exactly what a good
answer should and should not include, answer. Short in-class oral arguments serve
identifying the successes and deficiencies in a several pedagogical purposes. First, they force
student’s answer takes much less time. As noted “quiet” students to stand up and speak before
above, 100 Exercises includes sample answers their peers—a vital lawyering skill that many law
in the text and teacher’s manual; the answers students fail to master (or sometimes even try)
make creating a solid rubric a trivial exercise before graduation. Second, arguments allow
(one that can be farmed out to a competent the professor to provide immediate, targeted
teaching assistant).70 Second, the grader must feedback to the speaker. The feedback is
stay focused on the skills the Art of Lawyering personalized to the speaker, but it is also
teaches: parsing the relevant rule, pairing the publicized to the other students, who can learn
elements or factors with the relevant facts, and from their colleague’s successes and failures.
so on. The grader may have difficulty
overlooking poor grammar and word choice,
among other things, but those are issues 70 100 Exercises also includes generic rubrics
collateral to this class. The grader must focus on the professor can customize for any given
the big picture and let the small stuff go—or assignment. HILL & VUKADIN, supra note 19, at
refer the student to another resource that helps 17–19. 71 The Purdue Online Writing Lab
with those deficiencies, like a campus writing- provides free instruction on grammar and
center or the Purdue O.W.L.71 F. Oral punctuation and self-graded online
Arguments In addition to out-of-class student- assessments. See generally Purdue Online
written memos, the Art of Lawyering tackles in- Writing Lab, PURDUE U.,
class exercises, usually one per class. Brief oral https://owl.english.purdue.edu/owl/ (last
arguments (two to five minutes each) provide visited Dec. 29, 2015).
a way for the professor to assess student Third, oral arguments require students to “bring
performance on these in-class exercises when their A-game”—to try their hardest to avoid the
the students lack the time to write a full-blown pain of public humiliation. Because the students
do not know who will argue a given case until can read and comprehend. Professors should
the professor calls a name, every student must consider requiring students who scored less
be prepared. While the first advocate is than 75 percent on the comprehension portion
speaking, every student must take notes, to report their speed. Students with especially
because no one knows who the professor will low scores—under 200 words per minute—may
call on to make the counterargument. Finally, be referred to student services for further
in-class arguments allow the professor to evaluation.73 2. Rule Synthesis Module Students
critique and evaluate the students without the often struggle with rule synthesis. Synthesis is a
burden of reviewing yet another set of significant aspect of the MPT, and students
memorandums. The arguments are not a need to master this skill.74 MPTs provide an
complete substitute for written memos; the obvious way to practice, but students need
students need the frequent, individual easier synthesis problems to use as intermediate
feedback that a professor can provide only on stepping-stones. Teaching Rule Synthesis with
written memos. But oral arguments provide a Real Cases by Paul Figley75 provides those
good supplement to out-of-class memos and stepping-stones. Figley explains how to teach
in-class discussions by allowing the class to work synthesis by starting in a simple, non-legal
through even more problems. Again, repetition context and progressing to synthesis using re
is key. G. Miscellaneous Tools & Resources 1. 72 Free Online
Reading Speed Assessment Many
Speed Reading Test, ACE READER,
underperforming students are slow readers.
http://www.acereader.com/freespeedread
Several websites, such as “Ace Reader,” offer
ingtest/ (last visited Dec. 29, 2015). 73 One Art
free reading speed and comprehension
of Lawyering student struggled to complete
assessments.72 Requiring students to test and timed-writing exercise. Given unlimited time, he
report their reading speed on the website’s
could write a solid essay. After performing
highest reading level yields a fair assessment of poorly on a reading-speed assessment and
the number of words per minute each student
following up with additional evaluation, he
discovered that he had a previously suggest the student reviewed, condensed, and
undiagnosed learning disability. He received an synthesized the material from the casebook
exam accommodation from the law school, and class lectures. Cornell Notes is a way to
and his grades improved dramatically. 74 See redress this problem. Cornell Notes was
Diane F. Bosse, The MPT: Assessment developed in Cornell University’s education
Opportunities Beyond The Traditional Essay, 80 department by Walter Pauk almost fifty years
B. EXAMINER, Dec. 2011, at 17, 19. 75 See ago.78 In essence, Cornell Notes divide the
generally Paul Figley, Teaching Rule Synthesis blank page into three areas— two vertical
with Real Cases, 61 J. LEGAL EDUC. 245 (2011). columns, with the right column twice the width
of the left, and a page-wide blank area at the
16 NEV. L.J. 173, MURPHY - FINAL.DOCX 1/26/16
1:12 PM bottom of the page.79 Students take notes
while reading or during lecture in the larger,
194 NEVADA LAW JOURNAL [Vol. 16:173 al right-hand column. Sometime after class,
cases.76 His article includes a client students write in the left-hand column
hypothetical that the Art of Lawyering uses as “questions to help clarify meanings, reveal
another writing assignment and formative relationships, establish continuity, and
assessment.77 3. Cornell Notes strengthen memory.”80 In the space at the
Underperforming students generally have bottom of the page—ideally at the end of
atrocious note-taking habits. Some take too each week—students summarize the notes and
few notes during class, while others attempt to explain to themselves how this week’s notes fit
transcribe the entire lecture. Almost all bottom in with what the course covered in the prior
quarter students report that they spend little to weeks.81 Thus, Cornell Notes encourage
no time reviewing their notes on a regular basis. students to outline as the semester progresses,
Many are surprised to hear that retrospective rather than waiting until the end of the semester
reflection and review should be a part of their for one marathon outlining session. VI. THE
weekly study habits. And their notes reflect this COURSE IN DETAIL This section describes the Art
deficiency; rarely does anything in the notes
of Lawyering class in narrative format, from the
first day of class to the final exam. A class-by-
class outline of suggested assignments and
topics appears in Appendix II. A. Start with a
Bang: The First Week Students start solving class period begins, the professor distributes an
problems from the first minute of the first class. MPT-style problem, which the students have
“Welcome to the Art of Lawyering. Get out your seventy-five minutes to complete. The bar
laptop or a pen and paper. You have seventy- exam allows law school graduates ninety
five minutes to complete this assignment.” As minutes to complete a full-blown MPT. To give
soon as the 76 second-year law students a reasonable
See id. at 251. The cases all involve pedestrians chance of writing a complete answer in
slipping on banana peels. See generally id. The seventy-five minutes, the problem is scaled
lesson-plan sections of this article therefore refer back to a single issue and fewer authorities.82
to them as “the banana-peel cases.” 77 See id. Even then, many students will not complete the
78 See WALTER PAUK & ROSS J. Q. OWENS, assessment in the time allotted. This first day MPT
HOW TO STUDY IN COLLEGE 262 (11th ed. 2014). serves as an incoming assessment against
79 See Jenni Donohoo, Learning How to Learn: which to chart students’ progress over the
Cornell Notes as an Example, 54 J. OF course of the semester. And an exam on the first
ADOLESCENT & ADULT LITERACY 224, 225 (2010). day of class—with no warning or time to
80 See PAUK & OWENS, supra note 78. 81 See prepare—informs the students that this course is
id. different from their other classes, and in some
16 NEV. L.J. 173, MURPHY - FINAL.DOCX 1/26/16 ways more rigorous. The professor should have
1:12 PM the incoming assessment graded before the
second class. The students’ papers should be
Fall 2015] TEACHING REMEDIAL PROBLEM-
thoroughly marked up—every structural or
SOLVING 195
logical flaw revealed, every grammatical error
corrected. A heavily marked paper serves two the incoming assessment MPT. The discussion
purposes. First, it lets the students know how should be a preview of the techniques the class
lawyers and judges will review their work after will review during the coming semester:
graduation—to a level of scrutiny and extracting and synthesizing rules from multiple
skepticism, even criticism, that some students authorities, using the case grid to induce the
have never experienced. Second, it shocks rule and set up analogical reasoning, breaking
some of the “I don’t belong in this class” the rule into its component parts, analyzing one
students into the realization that maybe they factor or element at a time, using the CR[E]AC
can learn something after all. The rapid paradigm to structure the answer, and
turnaround on grading the assessment also sets mastering time management and reading
the tone and pace for the rest of the semester: comprehension skills.. By previewing the
Students will receive constructive written techniques, the professor can “wow” the stu
feedback within two days, sometimes sooner, 82 For example, the 2009 Jackson v. Franklin
on every memo they write. Students will Sports Gazette, Inc. MPT problem with the last
incorporate that feedback into their memo, case omitted yields a problem solvable in
which will fall due within a couple days. And so seventy-five minutes. MPT-1: Jackson v. Franklin
the submission—feedback—reflection— Sports Gazette, Inc., WASHBURN U. SCH. OF
submission cycle continues, hopefully with LAW: B. EXAM https://blogs.washburn
continuous improvement, throughout the law.edu/barexam/files/2015/05/MPT-Wkshp-1-
semester. The second class is essential for File-1-Jackson-v-Franklin-Sports-Gazette7_2009-
getting students to swallow their resentment 2.pdf (last visited Dec. 29, 2015). A rubric and
and buy into the course after realizing what model answer are available at The MPT
they can learn from it. In the second class, the Jackson v. Franklin Sports Gazette, Inc. Grading
professor should quickly dispense the standard Materials, YUMPU,
logistical preliminaries (or skip them altogether) https://www.yumpu.com/en/document/view/
and jump right into a class discussion on solving 25060718/jackson-v-franklin-sports-gazetteinc-
grading-oregon-state-bar (last visited Dec. 29, punctuation skills. Students suffering from the
2015). latter problem should be referred to the
school’s writing center or otherwise tutored
16 NEV. L.J. 173, MURPHY - FINAL.DOCX 1/26/16
1:12 PM outside of the Art of Lawyering class. In keeping
with the course’s goal of immediate,
196 NEVADA LAW JOURNAL [Vol. 16:173 dents constructive feedback, the professor should
with a sense of what they can learn from the mark up the papers for return as quickly as
course, a sense of how much more efficiently a possible. Students who demonstrate significant
brain can work through a problem when improvement should receive modest praise.
trained to think like a lawyer. The professor The professor should also distribute the rubric
should also lead a discussion on what skills the used to assess answers and a model answer to
MPT tests— e.g., reading speed and the problem—ideally a model answer written
comprehension, following instructions, working by the professor under the same seventy-five
with multiple authorities, time management, minute time limit imposed on the students. The
and so on. The Art of Lawyering covers every idea is not to “show off,” but to show what is
skill tested on the MPT, and students need to possible using the techniques the class will
hear that at the outset. After the second class, cover. This also conditions students to compare
students rewrite their incoming assessment their answers to the model answers so they can
answers to incorporate what they learned from start to develop self-assessment skills. Also after
the second class’s discussion. The professor the second class, students write a “Why I Am in
should tell them to take all the time they need the Art of Lawyering” essay. Essays should detail
to make their answer as letter-perfect as their best and worst grades in law school, what
possible. The resulting memo will serve as a prevented them from performing at a higher
second assessment, one that shows how much level, and how they plan to claw their way out
they learned from the class discussion, how well of the bottom quarter. Students are surprisingly
they can write when not under time pressure, forthcoming, and their essays help pinpoint
and whether they lack basic grammar and
particular problems, the solutions to which can on the grass?).83 Those problems are ideal for
be incorporated into class discussion if relevant reinforcing the fundamentals of problem
to several students, or broached during office solving—identifying the rule, breaking the rule
hours otherwise. The essay also serves as a third into components, and identifying analogies—
incoming reference point—an assessment of without getting tangled up in the law. The first
how well students can express themselves when eight problems84 are short enough to get
writing something other than the solution to a through two or three in a single class. The ninth
legal problem. This may spur additional referrals and final problem85 is an excellent opportunity
to the writing center or other resources for to teach rule induction and analogical
remedial writing assistance. B. Weeks 2 Through reasoning. Students write an answer to the ninth
7: Skill-Building and Reinforcement Through problem outside class and then, as with the
Repetition Between the first week of class and incoming assessment MPT, discuss it in class and
the first midterm in the seventh week, the rewrite their answers based on their evolved
students solve a series of increasingly difficult understanding of the problem-solving
problems. This is when the Hill/Vukadin book processes involved. The class typically works
provides its greatest benefit as a source of through four problems a week—two outside of
ready-made problems. Many of the problems class, for which the students write complete
are short enough for students to outline an answers, and two more inside of class, for which
answer in twenty to forty minutes (writing a the students merely outline their answers in the
complete, coherent answer takes longer— interest of time so that the class can discuss the
much longer for some). The book begins with problem in the same class period. On the
short problems set in a non-legal or quasi-legal inclass problems, after students work
context (e.g., Should a parent allow her individually to outline an answer, the professor
children to go swimming either guides the class in dissecting the problem
today? Should a police officer give a ticket for or calls on students to present short oral
arguments.86 Problems 10 through 30 in 100
littering to someone who threw a banana peel
Exercises are all deductive-reasoning problems Exercises (exercises 35 through 64 involve
that provide plenty of opportunities to practice analogical reasoning of increasing
the six-step problem-solving method described complexity).88 In the tenth week, students take
above.87 In the seventh week, students take the second midterm. This is an MCQ exam over
the first midterm exam. The midterm should be the larceny/embezzlement and
a problem similar in complexity to Exercise 29 in offer/acceptance rules covered in class. D.
100 Exercises, bearing in mind that students will Weeks 11 Through 14 In weeks 11 through 14,
have to complete this problem during the the class focuses on rule synthesis and the most
normal class period. C. Weeks 8 Through 10: complex problems of the semester—full-blown
MCQs and Analogical Reasoning After the first MPTs. The rule synthesis module is based on Paul
midterm, the class works on multiple-choice Figley’s Teaching Rule Synthesis with Real Cases
questions and analogical reasoning. For the article, and students write a memo on the
MCQ portion, the professor must provide the banana peel hypothetical set forth in the
class with outlines on narrow selections of article.89 With the MPTs, the class returns to the
doctrinal law (or tell the students where to find place where it began. Students write two MPT
good outlines). The Art of Lawyering uses the answers out-of-class, and they work through
law of larceny/embezzlement and two or three more in-class. Having the students
offer/acceptance. The class works though re-do the MPT they answered on the first day of
several MCQ questions—usually with choices class can show how far the students have
removed—per class session. MCQs without come. The final exam is a full-blown MPT
choices also make good short-essay questions. problem. The professor should allow the
After writing an answer, students must choose students more than the standard ninety minutes
the MCQ choice that best matches their allowed on the MPT. Two hours is appropriate,
answer. Meanwhile, students continue to work but a more difficult problem may justify a longer
on written problem solving, now advancing to time. VII. OUTCOMES The Art of Lawyering, in the
the analogical reasoning problems in 100 iteration described in this paper, has had a
significant impact on the students who have precipitously (part of that fall is because the
taken the class. Class rank determines whether higher-performing students eventually
students are required to enroll in the Art of graduated, leaving their lower-performing and
Lawyering; therefore, this paper uses class rank lower-ranked colleagues behind). The fall 2013
to gauge the Art of Lawyering’s effect. The class saw a similar modest boost the semester
following chart summarizes the average class they took the class, followed by a gradual
rank of Art of Lawyering students by semester: decline over the next two semesters. The spring
2014 Art of Lawyering students—the first class
FIGURE 1
taught using the methods described in this
The y-axis represents class rank by percentile paper—saw a much greater boost in class rank,
(the lower the percentile, the lower the and their average rank continued to rise in the
average class rank of the students in that semester following the Art of Lawyering. The fall
semester’s Art of Lawyering class). The x-axis 2014 class—again taught using these
represents semesters relative to the semester in methods—realized an almost identical gain in
which the students took the Art of Lawyering. class rank. Note that the fall 2014 class
Thus, “-1” is the semester before Art of comprised three sections, one taught by the
Lawyering, “0” is the semester of Art of author of this paper and the other two taught
Lawyering, “1” is the semester after Art of by other professors. Thus, not only did the fall
Lawyering, and so on. For example, “-1” on the 2014 class replicate the spring
“2014S” line shows that for students who took
the Art of Lawyering in spring 2014, the average
class rank at the end of the fall 2013 semester class’s success; other professors, using the same
was in the twentieth percentile. This chart lesson plan, achieved similar results. Two
represents data through the fall 2014 semester. conclusions flow from these numbers. First, the
The spring 2013 Art of Lawyering students saw a course structure and lesson plan deployed in
modest boost in class rank the semester they spring 2014—and the one described in this
took the class; after that, their average rank fell article— was significantly more effective than
the lesson plan used in spring and fall 2013. wishing to improve problem-solving skills among
Second, the increase in class rank appears to their underperforming students may achieve
be persistent for students taught under the similar results by following the methods
current lesson plan, whereas the increase was described in this paper.
short-lived under the prior iteration. Thus, as an
early intervention for underperforming students,
the Art of Lawyering is a success, at least as APPENDIX I—CASE GRID FOR “INVEIGLEMENT:”
reflected by average class rank. And the DID AMY INVEIGLE BETTY? TABLE 4 Hughes
methods and lesson plan described in this Macklin Boone Wills GarzaRobles Amy/Betty
paper were more effective than earlier Attempted deception? Yes No Yes Yes Yes Yes
iterations of the Art of Lawyering class. One of Nature of deception Promised to drive victim to
the Art of Lawyering’s goals is to improve the visit friend Minor; defendant made vague
bar-passage rate among students in the promise about bicycle. Promised to take victim
bottom-quarter of the class after the 1L year. to nonexistent marijuana farm Fake job offer
Whether the course has succeeded on the “Just talk” to drug cartel boss about loss of drug
metric is so far unknown. Students who took shipment Amy said the initiation would be
class in spring 2013 were part-time students, “mostly fun,” but she knew it would be painful
and most of them have not graduated and and humiliating Deception succeeded? Yes
taken the bar exam yet. Thus, confirmation of n/a Yes Yes No Arguably; but the newspaper
the Art of Lawyering’s effectiveness in terms of article suggests hazing practices are common
bar passage lies in the future. But for now, using knowledge Accompanied victim? Yes Yes Yes
class rank as the measure of success, the Art of No Yes No Reasoning “Attractive lifestyle” is not
Lawyering in its current form appears to be inveiglement Accompaniment not required (in
having the intended effect, and that effect is the 4th Circuit) Victim saw through the
replicable from one semester to the next and deception, but “seized by fear”
by different professors. Thus, other schools
 Outcome: Inveigled? Yes No Yes Yes No ?? Professor must have initial assessment graded
APPENDIX II—WEEK-BY-WEEK LESSON PLAN FOR before class begins. Topics: Into to Art of
THE ART OF LAWYERING The following lesson Lawyering; working through the
plan maps out the Art of Lawyering for a initialassessment MPT; introduction to the
fourteenweek semester. “Hill/Vukadin # x” problem-solving process and the case grid.
refers to exercises in Legal Analysis: 100 Return MPT answers at end of class.
Exercises for Mastery. The exact sequence of Assignments: (1) Students must rewrite and
assignments is not terribly important; for submit revised answers before the next class. (2)
example, a class could skip some of the easier, Students must write a selfreflective “Why I am in
early-on exercises the bottom quarter” essay and submit before
in favor of more complex exercises later in the the next class. 2 1 Professor must have MPT
rewrite graded before class. If students
semester. What is important is maintaining a
constant cycle of submission—feedback— improved, say so. Read the “bottom quarter”
essays before class. Topics: Common themes
reflection— submission over the course of the
on “bottom quarter” essays. Work Hill/Vukadin
semester. Because prompt feedback is a
crucial part of the Art of Lawyering, note well # 1, 2, 3, 4, 5 (as time permits) in class.
Assignment: Hill/Vukadin # 9 due before next
the short time between when students submit
work and when the professor returns graded class, and students to bring sample doctrinal-
class notes from prior semester to next class. 2
work, and schedule submission dated
Professor must have Hill/Vukadin # 9 graded
accordingly. Do not return graded papers until
before class. Topics: Work through Hill/Vukadin
the end of class; otherwise, students start
# 9, emphasizing the case grid to induce the
reading comments and stop paying attention.
rule and set up analogies. Discuss common
TABLE 5 Week Day Plan 1 1 Initial assessment: deficiencies in students’ Hill/Vukadin # 9 drafts.
Students complete MPT in class. The MPT should Assignment: Students to rewrite Hill/Vukadin # 9
be modified to allow a reasonable chance of and submit before next class. 3 1 Professor
completion in the 75-minute class period. 2
should have Hill/Vukadin # 9 rewrites graded week 5, class 2; email results to professor. 5 1
before class and have reviewed students’ Professor should have Hill/Vukadin # 19 graded
sample class notes. Topics: Cornell Notes. Work before class. Topics: Review Hill/Vukadin # 19;
Hill/Vukadin # 10 in class. Assignment: work # 20 in class. Assignment: Hill/Vukadin # 21
Hill/Vukadin # 11 due before next class. Take due before next class. 2 Professor should have
Cornell notes for one week; submit sample in Hill/Vukadin # 21 graded before class. Topics:
week 4, class 2. 2 Professor should have How to be an active reader and increase
Hill/Vukadin # 11 graded before class. Topics: reading speed and comprehension; review
Review Hill/Vukadin # 11; work # 12 in class. This Hill/Vukadin # 21. Assignment: Hill/Vukadin # 23
is a good time to start in-class oral arguments. due before week 6, class 1. 6 1 Professor should
Assignment: Hill/Vukadin # 15 due before next have Hill/Vukadin # 23 graded before class.
class. 4 1 Professor should have Hill/Vukadin # Topics: Review Hill/Vukadin # 23; work 22 in
15 graded before class. Topics: Review class. Assignment: Hill/Vukadin # 25 due before
Hill/Vukadin # 15; work # 14 or 16 in class. week 6 class 2. 2 Professor should have
Assignment: Hill/Vukadin # 17 due before next Hill/Vukadin # 25 graded before class. Topics:
class Professor should meet with every student Review Hill/Vukadin # 25; work 26 in class.
individually this week or next outside of class Assignment: Hill/Vukadin # 29 due before week
time. Expect meeting to take 20– 40 minutes 7, class 1. 7 1 Professor should have Hill/Vukadin
each. 2 Professor should have Hill/Vukadin # 17 # 29 graded. Topics: Review Hill/Vukadin # 29;
graded before class. Topics: review Hill/Vukadin work Hill/Vukadin # 30 in class Assignment:
# 17; work # 18 in class. Assignment: Hill/Vukadin # 31. Distribute (or tell students
Hill/Vukadin # 19 due before next class. Online where to find on Westlaw)
16 NEV. L.J. 173, MURPHY - FINAL.DOCX 1/26/16 larceny/embezzlement outline. 2 Midterm 1.
Students have 75 minutes to solve a problem
1:12 PM
similar in length and complexity to Hill/Vukadin
204 NEVADA LAW JOURNAL [Vol. 16:173 # 29. Assignment: Memorize
reading-speed assessment to be completed by
larceny/embezzlement outline. For both facilitates this kind of reflection, and halfway
larceny and embezzlement, list five ways in through the semester is a good time to re-
which the doctrine might be tested on a MCQ emphasize this skill. 91 The Hill/Vukadin
test. In other words, if the students had to create problems are longer and more complex from
the test themselves, how would they test their this point forward. Assigning more than one per
own ability to apply these rules?90 Bring to class week creates a grading logjam.
next time. 8 1 Professor should have Hill/Vukadin
# 31 graded. Topics: Review midterm problem.
Discuss Hill/Vukadin # 31. Discuss Assignment: Distribute offer/acceptance
larceny/embezzlement law and the ways it outlines (or tell students where to find them).
might be tested. Teach strategies for success on Students should list five ways
MCQ, emphasizing that the essential process is offer/acceptance/mailbox rule might be
the same as for essay questions. Work through tested; bring to next class. 9 1 Professor should
one or more MCQs with answers removed. have Hill/Vukadin # 33 graded. Topics: Review
Assignment: Hill/Vukadin # 33, due before week Hill/Vukadin # 33. Discuss offer/acceptance
9 class 1.91 2 Professor should have midterm 1 and how it might be tested. Work through one
graded. Topics: What went right, what went or more offer/acceptance questions with the
wrong on midterm 1. Review more MCQs. answers removed. Assignment: Hill/Vukadin #
90 Students should be able to anticipate some 35, due before week 10, class 1. 2 Topics: Work
of the MCQ questions that will be discussed in through additional offer/acceptance
class or will be on the midterm. The point of this problems. Assignment: Hill/Vukadin # 37, due
exercise is to show students that reflecting on before week 11, class 1. 10 1 Professor should
law outside of class, as opposed to merely have Hill/Vukadin # 35 graded. Topics: Review
trying to memorize rules, will allow the students Hill/Vukadin # 35. Review
to anticipate the questions a professor will ask larceny/embezzlement, offer/acceptance.
during class or on an exam. Cornell Notes Practice MCQ test and review. Assignment:
Hand out rule-synthesis cases; read and brief for
week 11, class 1. 2 Midterm 2. MCQ exam grade than the Hill/Vukadin problems; grading
covering larceny/embezzlement and more than one MPT per week is not a realistic
offer/acceptance. 11 1 Professor should have goal.
Hill/Vukadin # 37 graded. Topics: Review MCQ 16 NEV. L.J. 173, MURPHY - FINAL.DOCX 1/26/16
exam. Will take much of class. Review
1:12 PM
Hill/Vukadin # 37. Begin rule synthesis module.
Assignment: Banana-peel memo due before 206 NEVADA LAW JOURNAL [Vol. 16:173 15
week 12, class 1. 2 Topics: Finish rule-synthesis Final exam. The final exam consists of a single
module. Introduction to MPT & MPT strategies. MPT-type problem. Because the students are
Assignment: Assign an MPT problem;92 due 2Ls, not graduates, they should have more than
before week 13 class 1. 93 12 1 Professor should 90 minutes for the exam. Two hours is generally
have banana-peel memos graded. Topics: appropriate, but a particularly difficult MPT may
Review banana-peel memo. Work through part justify more time.
of an MPT in class. 2 Topics: Finish in-class MPT. APPENDIX III—STUDENT TESTIMONIALS The
Assignment: Assign MPT problem # 2; due week following excerpted emails are testimonials to
14 class 1. 13 1 Professor should have practice TAMU’s associate dean for academic affairs
MPT #1 graded. Topics: Work through MPT from students who achieved significant
problem #1; begin another in-class MPT. academic gains, which they attribute to the Art
Assignment: Assign MPT problem #2; due of Lawyering. Emails like these do a lot to
before week 14 class 1. 2 Topics: Finish second combat the natural resentment students feel
in-class MPT. 14 1 Professor should have MPT # 2 when required to take the class.94 Testimonial
graded. Topics: MPT # 2. 2 Topics: Whole- 1: I know many of my peers decided not to put
course review. Student evaluations. much effort in to the Art of Lawyering course
92 Practice MPT exercises are readily available because they were upset that they were
on the Internet. See NCBE Study Aids Store, required to take the class due to their grades. If
supra note 32. 93 MPTs take much longer to these students put effort in to the class, as I did,
I believe that they would have gotten amazing received the email that I was required to take
results. My first two semesters of law school, my Art of Lawyering due to my standing I was very
GPA averaged around a 2.65. This past upset. I believed that I should not be there.
semester I received a 3.31 GPA and, in addition, Really and truly, I believed I was a better
received an A in Constitutional Law. I know that student than that. The first couple of weeks of
these grades were reflective of the material class, I probably spent most of that time pouting
and information I learned from the Art of and still upset that I was in that class. It took me
Lawyering. Several students spoke about how several weeks to realize that I was in Art of
they were upset about being placed in the Lawyering because I NEEDED to be in Art of
class because they knew that their grades were Lawyering. When we started looking at how to
reflective of how much time they spent step up our answer to essay questions, I realized
studying, not that they did not know how to just how wrong I was. During exams, I would just
study or how to answer questions, etc. This class start writing with no road map or direction.
did not necessarily require me to study more, Professor Murphy showed me how to step up
but taught me how to study more efficiently, my answer for each and every answer I will
how to answer multiple choice questions in the encounter during my finals. This was a priceless
most effective way, and how to answer short lesson because in the world of a law student,
answer and essay questions to the best of my the only thing[s] that matter[] are your final
ability. I felt more confident walking in and out exams. 94 See
of exams this semester and my grades supra Part IV. See also E-mail from Sara Bonau,
improved significantly because of the Art of student of author, to Dean Maxine Harrington
Lawyering course. Testimonial 2: I was a student (Sept. 3, 2014, 9:55 PM) (on file with author); E-
in Professor Murphy’s Art of Lawyering class mail from Christian Chanel Rafie, student of
during Spring 2014. I expressed to Professor author, to Dean Maxine Harrington (Jan. 20,
Murphy how happy I am that I was told I had to 2014 12:35 AM) (on file with author).
take this class. I’ll be honest; when I first
Not only did he show us the CREAC method to last year and 1/2 of law school and most likely
set up our answers for our finals but he also my career after that. I hope my words have
helped us master multiple-choice questions. shined some light on the benefits of this course
The method that he teaches to read the and on the professor who helped me along the
question first and then move on to the problem way. I am happy to share my experience and
makes multiple choices easier to understand my growth.
and answer. When you figure out the answer
even before you look at the questions, it cuts
the time and anxiety of completing multiple
choice questions in half. I cannot believe that it
took me till the end of my finals to realize how
much Art of Lawyering helped me. I was more
confident going into my finals and I felt
organized and prepared. The lesson taught in
Art of Lawyering can be used in each in every
subject. I understand how student believe that
they are better than the class or that they do
not deserve to be there but they are wrong.
Honestly, the lessons and explanations taught
during this course should be something each
and every student should experience. I am
thankful that Professor Murphy pushed each of
us to open our eyes to a new way of thinking
and approaching each obstacle we face
during law school. I am also thankful to have
these new skills that will help me throughout my