Part I: Nudging Towards Professionalism

Erin M. KeyesAssistant Dean of Students

University of Minnesota Law School

What does “professionalism” mean, anyway?

How does the idea of Libertarian paternalism apply to the preparation of future legal professionals?

Is your choice architecture built for HUMANS or Econs, and why does this matter in legal education?

How can we balance administrative efficiency with need to inculcate professional ethics and behaviors?

Helpful to compare professional expectations for lawyers with academic and administrative expectations for law students.

Minnesota Board of Law Examiners and Minnesota State Bar Association’s Professionalism Committee address fundamental requirements and relation to law school.

MSBA Professionalism Committee has great materials and interactive questions at: www2.mnbar.org/committees/professionalism/fold.pdf.

PROFESSIONAL STANDARD (MINNESOTA BOARD OF LAW EXAMINERS)

LAW SCHOOL CONTEXT

The ability to reason, recall complex factual information and integrate that information with complex legal theories;

The ability to communicate with clients, attorneys, courts, and others with a high degree of organization and clarity;

The ability to use good judgment on behalf of clients and in conducting one's professional business;

The ability to conduct oneself with respect for and in accordance with the law;

The ability to avoid acts which exhibit disregard for the rights or welfare of others;

“Thinking like a lawyer” as learned in law school classroom.

Using effective and respectful communication with peers, instructors, staff, employers, etc.

Thinking before acting in both academic and non-academic contexts that may impact reputation.

Following rules, policies, and laws even if outside the law school context.

Complying with Honor Code, and avoiding actions or conduct that harm others or reflect negatively on student or institution.

PROFESSIONAL STANDARD (MINNESOTA BOARD OF LAW EXAMINERS)

LAW SCHOOL CONTEXT

The ability to comply with the requirements of the Rules of Professional Conduct, applicable state, local, and federal laws, regulations, statutes and any applicable order of a court or tribunal;

The ability to act diligently and reliably in fulfilling one's obligations to clients, attorneys, courts, and others;

The ability to use honesty and good judgment in financial dealings on behalf of oneself, clients, and others; and

The ability to comply with deadlines and time constraints.

Ability to research, review, and comply with law school and university rules, policies, requirements, and procedures.

Advance planning and diligence in completing assignments, fulfilling clinic duties, and organizing student group events.

Compliance with Honor Code; prompt payment of tuition and fees; fulfilling obligations on group assignments.

Completing papers and assignments on time; complying with administrative deadlines for registration, ExamSoft downloads, etc.

BALANCE – if an attorney can’t take care of herself, she can’t ably represent the needs of her clients. Professional education should explicitly address balance,

stress relief, and treatment for underlying conditions that may interfere with ability to meet practice standards.

Lack of balance, or genuine underlying condition requiring treatment, does NOT exempt from practice standards in real life, and should not in law school.

WWJD principle: “What Would The Judge Do” when considering a request for continuance, accommodation, extension, etc.

SERVICE – While not a requirement, service to indigent clients and the legal system are important professional values that may also preserve personal values that many students hold coming in to school.

Initial assumption legal system is strongest when it reflects diversity of broader society it serves (cultural, ethnic, gender, political, religious, intellectual, etc.). In other words, valuing law student individuality and liberty.

Caveat Professional obligations to clients in practice necessarily trump lawyers’ individuality and liberty interests. Legal professionalism requires skills and competencies that run counter to human inclinations, so our role requires that we curtail students’ liberty interests, in other words, act paternalistically.

Caveat to the caveat Overly paternalistic choice architecture (i.e. a template for everything) may unintentionally prevent students from developing important professional skills. Don’t let your choice architecture undermine student self-sufficiency.

Scene from the movie Napoleon Dynamite:

Deb: What are you drawing? Napoleon Dynamite: A liger. Deb: What's a liger? Napoleon Dynamite: It's pretty much my favorite animal. It's like a lion and a tiger mixed... bred for its skills in magic.

ECONS (AND LIGERS, AND UNICORNS)

HUMANS (INCLUDING LAW STUDENTS)

Make timely and rational decisions based on full and proactive review of available information. Examples:

Carefully reads, reviews, and retains critical information from administrative emails or web notices;

Immediately responds to requests for information or acts on necessary administrative processes.

Reviews all available rules and policies before requesting assistance from staff;

Ably distinguishes between anecdotal vs. reliable information;

Makes good decisions about optional programs, services, or activities based on relevance to their professional development;

Manages time effectively to ensure appropriate allocation to classes, study, assignments, extra-curricular activities, etc.

Err regularly, in predictable ways, which choice architecture should presume. Examples:

Blows past or ignores administrative emails and won’t proactively seek out information on web.

Procrastinates in responding to administrative requests or processes until deadlines loom. Or worse, takes up administrative time to fix what could have been avoided.

Would rather ask a person than look through posted rules and policies.

Relies more on peer stories and gossip than reliable or “official” info.

Asks “what do I HAVE to do?” when given options.

Unrealistic time management and allocation to academic and extracurricular projects.

Why do our law students often seem

“simultaneously so smart and yet so

dumb”?

Or as my grandmother put it: “there’s just nothing ‘common’ about ‘sense’ these days.”

False assumption “almost all [law students], almost all of the time, make choices that are in their best interests”

Reality: humans make the best choices for themselves when they are EXPERTS, “in contexts in which they have experience, good information, and prompt feedback”.

1L law students are in fact novices to the legal profession, professionalism generally, and the workings of your individual institution. In other words:

No experience, besides Law & Order, My Cousin Vinnie, or Legally Blond;

Lots of information, but too much to process or prioritize efficiently; and

Not much prompt or individualized feedback.

Most law students “are busy, [their] lives are complicated, and [they] can’t spend all [their] time thinking and analyzing everything”, at least outside of the classroom context.

Availability

Heuristic

“Mwah wah mwuah,

whua waaahhh”

- Teacher from Peanuts, OR law school administrator droning at Orientation lecture

Vivid, recent, frequent, anecdotal examples of risks are more powerful and influential on decision-making than statistical probability. Law students get lots of frequent and

anecdotal (mis) information from social networking.

Small number of unhappy students can influence larger population, even if anecdotes do not represent reality.

“I heard that…” Whole point of hearsay rules in Evidence is to

keep unreliable evidence OUT of the courtroom.

Institutions can use examples and stories to influence students’ decisions. Examples:

Rather than (or in addition to) reciting Honor Code provisions, feature a student who violated the Honor Code, and must now face an uphill battle for bar certification, or simply provide clear examples of violations and the consequences.

In “balance” programming, feature student or grad with DUI or other conduct problem.

Representativeness / Similarity

Assumption of similar results based on limited shared characteristic, or confusing random fluctuations with causal patterns. Career office: Where “hopes

and dreams go to die”. Attributing low placement levels to placement staff, rather than larger employment trends or even students’ efforts in career development.

Diversity implications – mis-impressions about true qualifications of diverse students.

Optimism and

Overconfidence

Incorrectly assessing ability to perform academically, amount of time required to complete a project, succeed in chosen field.

Assumption of superiority based on past academic performance

Doing what worked in the past (i.e. cramming, procrastinating), because it worked in college.

Sets up students for disappointment and mental health consequences when grades are average or below.

Underestimating amount of time required to complete a project. Examples:

Reading cases and preparing briefs. Drafting legal writing assignments in new format and new

legal language. Planning an event for a student group that involves

internal and external coordination.

Assumption of ability to practice law as initially envisioned

Big Law jobs never a sure thing, and now even harder to get;

Legal services jobs down with economy, so how to save the world?

Lack of budgeting and financial planning in light of loan debt.

Status Quo Bias

a/k/a “Yeah,

whatever” effect

Lack of action to change current circumstances, even if change would improve experience.

Many professional development tasks or opportunities require some action by the student, (i.e. pro bono volunteering, attending optional lecture, participating in a student group), that they simply may not take if they don’t “have to.”

How can institutions structure such opportunities to make it easy for students to attend?

Scheduling coordination (don’t conflict with other events)

Embed within schedule Provide food!

Doing what others do: how can you help your “herd” start out, and keep moving, in the right direction? In the alternative, how can you help individuals make good decisions when surrounded by bad ones?

Encourage common readings prior to Orientation Shepherd on the margins (i.e. clear up common questions or

hold-ups and disseminate widely) Enlist help of and provide training to peer leaders, who have

more immediate influence than nameless “administration.” Spotlight effect: students assume they are in the spotlight

when in fact, others don’t pay much attention to them. Implications for students accessing (or not) support resources

for mental health or dependency issues. Influence on attendance at voluntary academic support

programs.