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May 19, 2010 11:22 AM

Welcome to the Future: Feedback, Please

Posted by Paul Lippe

Last week I participated in "Building Better Lawyers," a meeting convened by Gillian Hadfield of USC and Anthony Kearns, the Australian lawyer and risk manager. It was an all-star crew of general counsel, academics, and law firm leaders, and we heard about a number of initiatives from law firms (e.g., DLAPiper and Howrey both implementing programs to better assess and train associates), law schools (e.g., Stanford, Northwestern, and Indiana all trying to make legal training more experiential and client-oriented), and clients (e.g., HP has hired five grads straight from elite law schools and is developing a focused “on-boarding” curriculum).

The discussion was informed and collegial, part of the ongoing and interconnected dialog between clients, firms, and law schools that will drive change not via formal consensus but rather experimentation and feedback. Larry Kramer, dean of Stanford, even challenged the group to provide more feedback to law schools to accelerate useful innovations.

The big "ah-ha" moment for me came on the central role of feedback in learning. Bill Sullivan, the author of the 2007 Carnegie Report Educating Lawyers: Preparation for the Practice of Law, contrasted "Summative Assessment," evaluating performance to weed out lower performers (predicated on the assumption that talent is innate and best brought out by drive), and "Formative Assessment," feedback that learners use to further their own development.

Sullivan and other educators from fields such as business, medicine, flight school, and education highlighted the degree to which law schools and law firms emphasize summative assessment relative to other professions. If you have a community of professionals (i.e., lawyers) who have been raised in a dominantly summative context, it should come as no surprise that they neither seek feedback (since their summative success implies they don’t need it) nor are especially good at giving it (since they have rarely seen it modeled).

However, according to Sullivan, if you really want someone to learn something (in contrast to just weeding out those who “don’t get it”), formative assessment works a lot better by making it clear to folks what you want them to learn (the opposite of the corrective method used most frequently in law school), modeling what you want them to learn; and giving them a chance to practice with coaching and feedback and without fear.

Law’s general preference for Summative Assessment is out of date not just as a style of pedagogy, but with the major trends in law and management. First, corporate law departments (who operate in Formative environments of training and 360 Reviews) rightly insist on their ability to assess law firm performance collaboratively, so firms now have to accept real feedback from clients and use it to establish a shared notion of value.  Second, younger lawyers’ generational expectation for coaching (and clients’ insistence on training them more efficiently), means they expect more formative assessment, both in school and in the workplace.  And finally, the general skepticism of our times means that if lawyers expect to really influence their clients on broad categories of behavior (e.g., aligning compensation with long-term performance, or being candid in disclosure), they have to model the behaviors they are advocating, not simply prescribe them within an intellectual or even compulsory rubric.  

My time at Building Better Lawyers was bookended by two other experiences that highlighted the role of feedback.  The week before, I attended a panel presented by two icons of the Internet era, John Seely Brown and John Hagel, who discussed the impact on skills acquisition when information is ubiquitously available.  http://blogs.hbr.org/bigshift/

They told the story of Casey Payne and his friends, five young surfers from Maui (apparently Maui doesn’t have the best waves, and so had never previously produced top surfers) who decided at the age of 15 that they wanted to be champions.  Using the Internet, Payne & Co. got videos of other surfers from around the world and carefully studied, frame-by-frame, every move, critiqued each other, tested different techniques and adjustments (including board shapes and dimensions), corresponded with other surfers, and made it to the pro tour.

The surfers' key to success, which Brown and Hagel believe is transferable to business and professional settings, is passionate commitment, spending the time described by Daniel Levitin and Malcolm Gladwell as the 10,000 Hours as needed to acquire expertise, access to network-based “knowledge flows” to share and accelerate learning, a willingness to experiment and fail, and a willingness to teach and reciprocate. They learned by doing, and they created for themselves the learning context. You can't BS or intimidate a wave, so every piece of performance had immediate and objective feedback; you can’t get better by doing the same thing every time, so they had to experiment.

This weekend, I watched John Paye, former Stanford and NFL quarterback (who was himself trained by Bill Walsh, considered by many to be the preeminent QB coach of his era), coach a high school QB (Max) on his footwork. First Paye explained the footwork for each throw, then he demonstrated it, then he encouraged Max as he was practicing, and then gave Max specific directions on how to do better. Then Paye invited Max to meet other coaches and players for broader learning and exposure. Perhaps not exactly rocket science, but also not exactly the norm in LawWorld, and for sure not touchy-feely.

Going forward, we can apply some of the learnings from Building Better Lawyers to provide richer and more real-time feedback from clients to firms (including associates) and to law schools. Education and training in a professional setting can't be separated from doing, so we have to create safe opportunities for learners to develop skills. Some folks dismiss this as a "trade school" mentality; others suggest it is unaffordable. But I suspect lawyers can and will learn a lot from champion surfers and NFL QBs (not to mention forward-thinking law faculty) on how to achieve peak performance through more normative styles of feedback.

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Interesting and thought provoking post. A major challenge going forward will be to enable/persuade those who grew up and experienced the "summative" environment to move to the "formative or feed back approach. It will be a challenge in the corporate environment and even more so in law firms. The positive climate for meaningful change continues to develop as reflected by the fact that leaders in each of the key areas (law schools, law firms and law departments) push forward.

The "learn by doing" approach,which Paul so ably summarized in his post,is coming to a law school or law firm near you. It's not a matter of if,but when.Best to be in front of this curve than behind it.

Giving students wide open spaces to practice, to succeed and to fail and then teaching them how to deconstruct and learn from those successes and failures is key to the development of good judgment. Sound judgment requires reasoning skills and, perhaps more importantly, strong intuition. As Jonah Lehrer describes in How We Decide, the best airline pilots, chess players and QBs hone their judgment through repeated trial and error. The brain collects empirical data from this process. Those who are willing to study and learn from their mistakes develop an intuition, a “gut feel” for the right judgment. We, as law faculty can model this process for our students: We can try to teach the difficult, amorphous-seeming skills, risk making big mistakes in the process and publicly acknowledging our flops when they happen. The pay off is amazing. And in my experience, formative teaching and learning is far more fun than the traditional teaching to summative assessments methods that encourage singularly uncreative, risk-averse law students and lawyers.

I attended BBL as well and was delighted to find that the most forward thinking and successful law firms and general counsel make a practice of studying their successes and failures. Their feedback to law schools about the need for this kind of training is what will change legal education.

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