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June 2014 - 1Ls and Zeros—Law Schools Join the Digital Age

by Martin Pritikin

It is no secret that lawyers as a group are not necessarily the most tech-savvy bunch. We may be iPhone addicts, but how many of us know what a virtual private network is, let alone the pros and cons of using one?

By contrast, students now entering law school literally cannot recall life before the Internet. Law schools must adapt to meet the demands of this digitally adept generation, as well as the changing realities of the legal marketplace. New technologies have already radically transformed the way law schools operate and prepare their students for practice. Undoubtedly, this trend will accelerate in the coming years.

Legal Research and Writing 2.0

A generation ago, the transition from books to electronic databases like Westlaw and Lexis seemed radical. Now, legal research instructors have begun to expose students to cheaper web-based research applications like Fastcase (which uses search-engine analytics in lieu of more traditional “headnotes”) and free online tools such as Google Scholar. New lawyers may find the financial advantages of these research tools particularly attractive. But students must also learn to weigh such benefits against the potential disadvantages of relying on resources that have not been edited by legally trained specialists.

Law schools are turning to technology not just to teach students to research, but also to teach them how to write. A number of law schools use Core Grammar for Lawyers, a software program that diagnoses students’ strengths and weaknesses and assists them with the foundational elements of legal writing. Law schools must also train students to interface with technologies such as e-filing platforms that courts now use to manage the submission of pleadings. Writing that killer brief doesn’t help much if you don’t know how to get it to the judge.

Gaming the Space-Time Continuum
Law schools experience ever-increasing pressure to accomplish more (even as some have called for shortening the length of the JD program). To successfully squeeze more content into a finite amount of time, law schools must turn to technology.

Some had predicted that MOOCs (massive open online courses) with thousands of enrollees would completely displace traditional classroom learning. But early studies of MOOCs have been disappointing: few enrollees actually complete the courses, and those who do may not learn as much as they would in the classroom. It now appears likely that hybrid online/live instruction will become the dominant mode of instruction in law schools in coming decades. This makes sense, because the “use” of technology is not enough—law schools must be smart about how they use it. The overarching question is what medium best serves which purposes?

Cost, convenience, and efficiency concerns suggest that anything that can be done remotely should and, eventually, will be. Thus, live lectures will largely become a thing of the past. Televisions and computer monitors are ideal for transmitting wisdom from talking heads; there is little reason why a sea of students needs to be in the same room as a professor who merely delivers information. Face-to-face class time is a limited resource, and will be reserved for things that are best done in person, such as spontaneous group work and simulated client interviews or advocacy exercises.

But even here, technology can help. For example, mock oral arguments seem like an ideal exercise to do in person. But only one student can speak at a time, and the remaining students who don’t have the floor are as likely to be engrossed with social media as engaged in the argument. In some instances, taping the proceedings and then uploading the video for the entire class to view and comment on remotely may actually be a more efficient and effective way to engage students.

Better Teaching Through Technology
Online learning platforms like Blackboard or Moodle provide analytic tools that allow a professor to get real-time, finely tuned data about student performance and participation. A professor can track which students watched an online lecture, and can require them to take a quiz—and even to perform at a certain level on the quiz—before they can advance to the next module.

Moreover, the professor will know before class whether the students as a whole are struggling with a certain concept, and adjust his or her in-class teaching accordingly. The professor can also see if a particular student is performing poorly overall, and can encourage that student to come to office hours for one-on-one assistance. Professors can thus make the best use of their class time, and perform more efficient student triage as well.

Computer-scored multiple-choice exams have been around for decades. But in recent years, programmers have developed software that automatically grades essays, leading some to worry that technology will not only supplement, but eventually supplant, teachers altogether. However, law professors need not panic. The software requires a human grader to “train” it by providing a few dozen graded essays as exemplars. Even if the software could attain a sufficient level of reliability to assess the type of legal analysis demonstrated in law school exams, there is a problem of scale. Unlike undergraduate courses, which can often have hundreds of students, law school classes are typically much smaller. By the time the law professor grades enough essays to train the software, his or her grading job is already nearly complete. Still, the advent of such software holds the potential for more frequent assessment of student performance and more rapid feedback to students, both of which improve student learning.

The Ethically Wired Law Student
In 2012, the ABA Model Rules of Professional Conduct were amended to provide that a “competent” lawyer is one who “keep[s] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Formal ethics opinions issued by the State Bar’s Standing Committee on Professional Responsibility and Conduct are to the same effect.

Thus, law schools will train students about technologies relevant to law practice, because they have an ethical obligation to do so. Courses in professional responsibility must address how different methods of transmitting and managing client documents—such as cloud-based services like Dropbox or virtual private networks—stack up in terms of their balance between ease of use, cost, and confidentiality. Similarly, encryption of laptops or other mobile devices used to access client information is an important but all-too-often overlooked topic. And ethical issues abound regarding lawyers’ use of social media for everything from advertising to jury research.

Many law schools offer courses in law practice management, but technology is changing what it means to “manage” a law practice. My institution will offer a course that focuses on the business and technology of being a lawyer, both in and out of the courtroom. Law schools must at least expose students to virtual law firm software or integrated practice management systems such as Amicus. Students must also understand that few lawyers can persuade today’s juries without effectively integrating technology into their trial presentations. As more lawyers conduct trials with relatively simple and inexpensive apps like TrialPad, clients will demand that their attorneys be proficient in such software, and so students will demand that law schools offer relevant training.

Big Data Goes to Law School
Businesses in every industry now rely on the vast amounts of available demographic data to improve their strategic decision-making and marketing. Law schools can ill-afford to overlook this treasure trove of information, and more and more companies are offering their services to the legal education market.

Rapid Insight, for example, advertises that it will help law schools crunch their data to determine things like what factors law schools should consider in admitting students (do engineering majors really perform better in law school?). My own institution consistently works with a statistical consultant to analyze data on a variety of issues and has used the results to change our policies and reform our curriculum.

In order to reach more potential students and establish reputations in particular fields, law schools increasingly seek to offer masters degrees, certificates, and other programs besides the traditional juris doctor. But launching any new program requires a big investment of resources. Market research can help law schools determine in advance whether and under what circumstances such investments are worthwhile. Washington, D.C.-based Hanover Research, for one, now has an entire division devoted to market and industry research for law schools.

All of these trends require law school professors and administrators to get up to speed on legal technology. For some, the transition may be painful. But law schools that want to avoid going the way of Windows XP will reinvent themselves not only to survive, but to thrive in the new digital landscape.

Martin Pritikin is the Acting Dean of Whittier Law School. References herein to technology products or services should not be considered endorsements. Martin can be contacted at mpritikin@law.whittier.edu.

 
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