Vieira de Almeida (VdA): Legal Innovation Pioneers in Portugal

The Case Development Initiative (CDI) at Harvard Law School debuted a new case study on the HLS Case Studies website. CDI is a program that develops role plays and case studies based on strategic and organizational issues that those in the law and other professional settings encounter. These cases focus on real life situations and are suitable for law school classrooms as well as professional development programs. The following blogpost is from one of the authors of the case study.

NEW PRODUCT: Vieira de Almeida (VdA): Legal Innovation Pioneers in Portugal

By Nathan Cisneros, Case Writer for the Case Development Initiative at Harvard Law School

We are pleased to announce a new innovation-focused addition to the Case Development Initiative: Vieira de Almeida (VdA): Legal Innovation Pioneers in Portugal. CDI team members Lisa Rohrer, Nathan Cisneros, and Karina Shaw teamed up with Reena SenGupta, founder of RSG Consulting and a pioneer in the analysis of law firm innovation. The case study examines how Lisbon-based VdA embedded a durable culture of innovation in response to a number of internal and external challenges in the late 2000s. With this new case study readers and instructors have the opportunity to explore the nut-and-bolts of an innovation culture in a law firm setting.

We were fortunate to have Reena as our guide. For the past ten years she has partnered with the Financial Times to produce an annual Innovative Lawyers special report. Reena and the Financial Times receive hundreds of submissions each year, so it takes something truly extraordinary to catch Reena’s eye. That’s exactly what happened in 2013 when VdA emerged–seemingly from nowhere–to claim that year’s award for “Most Innovative Law Firm in Continental Europe.” How had this little Portuguese law firm managed to overcome the deep economic troubles of its home market and put innovation at the heart of its business and values? There was only one way to find out, so we headed down to Lisbon with Reena to meet Vieira de Almeida.

We learned that Europe’s sovereign debt crisis was just one of several acute challenges facing VdA in the second half of the 2000s. The firm also grappled with generational changeover and a rapidly maturing market. Rather than fall into a defensive crouch, firm leaders seized the moment as an opportunity for re-invention. They launched an ambitious multi-year strategic review with buy-in from all levels of the firm which came to be known as the Lighthouse Project. We came to understand that VdA’s approach to the Lighthouse Project was emblematic of the firm’s values: a strong emphasis on teamwork, a willingness to try risky endeavors, and a commitment to carry ideas through to completion. The case study shows that the process by which firms develop their strategic vision is just as important to its overall success as the vision itself.

VdA’s innovation campaign emerged from the Lighthouse Project, and firm members pursued it with the same methodical zeal. VdA created a committee to evaluate, incubate, develop, and fund new ideas from all over the firm. It reorganized its HR department and empowered HR professionals to experiment with novel promotion and assessment systems. It did the same with business development, giving staff substantial leeway to pursue new clients and experiment with internal work organization. We think students and practitioners will greatly value reading in concrete detail how VdA actually implemented its innovation drive on the ground.

The case study was first presented in the Leadership in Law Firms course here at HLS. We were delighted to welcome Reena as our guest, and she discussed VdA’s achievements in the context of innovation trends in the legal profession. We invite instructors and practitioners to share their own experiences now that the VdA case is available to the public.

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Case Studies Greatest Hits of 2015

As the year comes to a close, here’s a look at our greatest hits of 2015. Have you downloaded our top cases and role plays yet?

Top New Cases of 2015:

  1. Algorithmic Allegories (version 1.0)

A workshop-based case study about an experiment designed by Facebook which altered the Facebook News Feed to explore if emotions can spread through Facebook. This study met vocal opposition for manipulating the moods of Facebook users, and also because users neither volunteered nor opted in to such research and were not informed of their participation in the study. This case study explains the parameters of the experiment, the reaction in the media, and the legal issues raised when algorithms permeate society.

  1. Driving Blind at General Motors (A) and (B)

A two-part discussion-based case study about the complex legal problems faced by General Motors following revelations that GM had known about a safety defect in millions of cars that caused over a dozen deaths for at least ten years prior to recall.

  1. SeyfarthLean: Transforming Legal Services Delivery at Seyfarth Shaw

A discussion-based case study that follows the adaptation of Lean Six Sigma–a concept of collaborative team effort borrowed from manufacturing–for a law firm environment and describes the challenges the firm encountered when introducing it to partners.

  1. Somalia in Crisis: Famine, Counterterrorism, & Humanitarian Aid

A workshop-based case study that provides an opportunity for students to examine the potential impacts of U.S. material-support-to-terrorism laws in the context of humanitarian crises, through the lens of the 2011 Somalia famine. Participants are primed to problem solve, navigate potentially competing domestic and international law and policy, and make ethical and legal decisions in a high-pressure, complex international crisis.

Ten Most Downloaded Cases of 2015:

1,. Harborco

A six-player, multi-issue scorable negotiation role play disputing the construction of a deep-water port. Harborco, the consortium interested in building the port, must promote buy-in and gain support from other stakeholders in order to obtain a necessary license. Participants learn more about coalition strategies and elementary utility analysis.

  1. Diego Primadonna

A negotiation role play in which a veteran soccer player tries to sign with a Brazilian football club experiencing a slump. In striking a deal, participants will practice probing for interests and creating value, in addition to learning about the zone of possible agreement and distributional strategy.

  1. William Fox

A case study that follows the career and life path of William Fox, a middle-aged, English partner at a law firm in London. This case allows participants to reflect on how to evaluate one’s career trajectory, the balance between commitments to work and personal life, and how the meaning of “success” might evolve over time.    

  1. Problem Solving for Lawyers

A technical note that outlines a systematic approach to problem solving for lawyers and gives students a framework to solve client problems, including addressing legal and ethical issues.

  1. Linklaters (A): Seeking Clear Blue Water

A discussion-based case study concerning the importance of having a clear strategy in a professional service firm (PSF), the challenges related to implementing a strategy, and the considerations that lead to successful change management in a PSF.

  1. How to Approach a Case Study in a Problem Solving Workshop

A technical note that helps students to effectively read problem solving case studies and prepare for problem solving class discussions and exercises.

  1.  Algorithmic Allegories (version 1.0)\

A workshop-based case study about an experiment designed by Facebook which altered the Facebook News Feed to explore if emotions can spread through Facebook. This study met vocal opposition not solely for manipulating the moods of Facebook users, but also because users neither volunteered nor opted in to such research, and were not informed of their participation in the study. This study is a motivating example of the moral, legal, and technical questions raised when algorithms permeate society.

  1. Ernest Shackleton’s Journey to the Endurance

A discussion-based case study about explorer Ernest Shackleton’s dramatic voyage to the Antarctic, and a great example of effective teamwork and leadership in crisis.

  1. Managing the Client Portfolio

A discussion-based case study that helps students reflect on the benefits as well as challenges of having different types of clients;  how to determine the appropriate mix of clients in a professional service firm; and the change management challenge of achieving the desired mix.

  1. The Offer

A role play case on negotiations that helps students understand the advantages and disadvantages of using email for negotiation; evaluate the challenges of setting up and conducting an auction; and identify the impact of process decisions on relationships.

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Putting RBC Capital In Context

The following blogpost is from one of the authors of the HLS teaching case study, Barclays Capital and the Sale of Del Monte Foods, on a recent court ruling related to the case.

Putting RBC Capital In Context

By John C. Coates, John F. Cogan, Jr., Professor of Law and Economics at Harvard Law School and Karina Shaw, Research Associate, Case Development Initiative at Harvard Law School

In a recent decision, the Delaware Supreme Court upheld Chancery Court decisions requiring RBC Capital – a unit of the Royal Bank of Canada – to pay $76 million to Rural/Metro shareholders based on RBC Capital’s advisory work for Rural/Metro in its 2011 sale to Warburg Pincus. RBC Capital sought a buy-side financing role for Warburg Pincus, a private equity firm, while giving Rural/Metro sell-side advice, and sought to leverage its role in the Rural/Metro deal for work in an unrelated deal without disclosing that fact to Rural/Metro’s board. As a result, under the Revlon standard the Court applied to the case, RBC Capital “aided and abetted breaches of fiduciary duty by former directors of Rural/Metro Corporation,” said the Court, even as it sought to limit the holding by stating that “a board is not required to perform searching and ongoing due diligence on its retained advisors … to ensure that the advisors are not acting in contravention of the company’s interests….”

The claims in Rural/Metro follow the line of cases initiated in litigation over the 2011 Del Monte buyout, as detailed in the HLS teaching case study, Barclays Capital and the Sale of Del Monte Foods, as well as in a case study of the roles played by Goldman Sachs in El Paso’s Sale to Kinder Morgan. Unlike in Rural/Metro, where RBC Capital sought but did not obtain a buy-side role, Barclays Capital and Goldman Sachs actually worked both the buy-side and sell-side of those transactions, and shareholders accused the boards of the target companies of failing their duty of care by inadequately learning about and policing the resulting conflicts. The case studies, which are taught at both Harvard Law School and Harvard Business School, explore issues of ethical leadership and deal process management. They also provide a basis for exploring the effects of the financial crisis of 2007-08 on the complex interaction – and arguably, competition for primacy – in regulating investment banks in the M&A context by the Delaware courts, Congress, the U.S. Securities and Exchange Commission, and the other financial regulatory agencies.

In its deal, Del Monte sold itself to a “club” of three private equity firms, Kohlberg, Kravis, Roberts, & Co. (KKR), Vestar Capital Partners (Vestar), and Centerview Capital LP (Centerview). In the standard shareholder lawsuit that followed, evidence was discovered suggesting a failure on the part of the Del Monte board to oversee the deal process, particularly the roles played by Barclays. In February 2011, Delaware Chancery Court Vice Chancellor Travis Laster provisionally enjoined the deal, criticizing both Del Monte’s board and Barclays Capital. The judge delayed the shareholder vote on the buyout by 20 days and essentially extended the “go-shop” period under the agreement to give other buyers a further opportunity to top KKR’s price. When no buyers emerged, the deal closed unchanged a few weeks later.  

In October 2011, Del Monte announced a settlement of its shareholder litigation with a payment of $90 million, funded by the private equity buyers ($65.7 million) and Barclays ($23.7 million, roughly the amount of its buy-side fees), generating $22.3 million in fees for plaintiffs’ lawyers.  In the El Paso dispute, the settlement amount was even larger ($110 million), as were the plaintiffs’ legal fees ($26 million). Now together with Rural/Metro, these settlements are among the largest recorded payouts in M&A-related litigation.

These cases demonstrate to Wall Street that banks’ conflicts of interests can have serious repercussions for both the banks and their corporate clients. In each case, the courts are confronted with behavior that has not been the conventional focus of fiduciary duty disputes – whether the target board failed to get basic information about the deal (as in the famous Van Gorkom case) or were themselves conflicted or beholden to conflicted participants (as in freezeouts or management buyouts).  Rather, the behavior in question relates to advisors on whom the board depends. The cases are difficult, as it is the directors themselves who have the duties giving rise to the litigation, and yet without allegations of bad faith or disloyalty on their part, they are typically exculpated from any liability for failing their duty of care. The results can be anomalous, with directors ultimately let off the hook, while their advisors’ conduct is scrutinized closely for any gap between their apparent conduct and either the directors’ documented understanding or judicially articulated and at-times nuanced standards, often on an incomplete record (as in the Del Monte buyout).

The impact of the court decisions has been significant. Stapled finance, for example, was common in both public and private target buyouts in the 2000s, but since Del Monte has largely disappeared in public target deals, even as its continued role in private deals suggests that it can have benefits that outweigh its risks. “Boutique” investment banks, too, have enjoyed a steep rise in fee income since Del Monte, as their focused practices generate fewer conflict risks, even as they offer fewer services. The disputes illustrate how Delaware courts can chasten and control a high profile and lucrative part of the business of multi-service Wall Street banks, even as Congress and the federal regulatory agencies wrestle with the broader need for regulation of the financial system. Our case studies are framed without prejudging the outcomes, allowing for rich student-led discussions of the issues embedded in the facts of the deals. They also provide a better means than dry lecture to convey vividly important trends in the institutional context of M&A, such as the rise of the private equity industry, the ever-elaborating process through which buyouts of public companies must pass, and the essentially “regulatory” role played by shareholder plaintiff lawyers. At the intersection of corporate law and finance, the cases link theory and practice in both law and business school classrooms.

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Reforming Partner Compensation at Mattos Filho

The Case Development Initiative (CDI) at Harvard Law School recently debuted a new case study on the HLS Case Studies website. CDI is a program that develops role plays and case studies based on strategic and organizational issues faced by those in the law and other professional settings. These cases focus on real life situations and are suitable for law school classrooms as well as professional development programs. The following blogpost is from one of the authors of the latest case study. 

NEW PRODUCT: Reforming Partner Compensation at Mattos Filho

By Dr. Lisa Rohrer, Executive Director of the Case Development Initiative and Lecturer on Law at Harvard Law School

We are excited to announce the addition of a new case study to the Case Development Initiative collection: Reforming Partner Compensation at Mattos Filho, which was co-authored by CDI’s Lisa Rohrer and James W. Jones of Georgetown Law Center. The case study explores the efforts of Brazilian law firm Mattos Filho to move its partner compensation system away from an Eat-What-You-Kill formula to one that is more subjective in nature in order to break down silos and encourage teamwork and collaboration.

The Mattos case study is a fascinating story that provides many learning opportunities for both students and practitioners. First, partner compensation is a difficult issue for many firms, and the systems examined in the case (formula and subjective) represent two fundamentally different approaches to partner compensation. It is thus an ideal teaching tool because it enables readers and instructors to explore the pros and cons to each compensation approach in-context.

A second aspect of the Mattos case that caught our eye was the approach used by Roberto Quiroga Mosquera, the firm’s then managing partner, to convince his partnership to make a big and potentially risky change. Under the old compensation system, the most senior and productive partners were the biggest beneficiaries. Quiroga needed to convince this group to give up some of their immediate rewards for the long-term good of the firm. Quiroga’s skillful tactics makes this an excellent case study of effective change management.

We also wanted to write about Mattos Filho because the case setting itself is quite interesting. Brazil has a large and fast-growing legal market, and Mattos is one of the country’s top law firms. (In fact, Chambers and Partners recently ranked them as the Best Law Firm in Latin America.) The case provides a great opportunity to explore how a law firm that was already among the best in its market proactively addressed a difficult issue to further enhance its future competitive position. While it is often easier to implement change from a position of strength, many firms wait until there is a crisis before they attempt a major change because when performance is strong, it is difficult to convince partners to take a chance on the unknown. We believe the Mattos case is a particularly instructive and inspiring case study because the firm proactively implemented a reform during good times.

The case study has been piloted in several executive education programs both here at HLS and at Georgetown Law. We found that law firm leaders appreciate both the substance of the change and the tactics used to enact it. In 2014, we were especially excited to welcome Roberto Quiroga to address one of our HLS executive education sessions, during which he shared reflections on the events chronicled in the case study. Now that it has been released to the general public, we look forward to hearing from instructors and practitioners about their own learning experience with Mattos Filho case.

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The Future of Digital Intellectual Property

In today’s highly digitized world, tens of thousands of new mobile apps, websites, and softwares are released daily. While we enjoy an almost incomprehensible amount of creative and innovative material in the digital space, this proliferation perpetuates questions of the appropriate scope of intellectual property. Regulators and legal minds alike continue to debate how copyright law should apply to computer programs.

Lotus v. Borland: A Case Study in Software Copyright,” a Harvard Law School case study by Ben Sobel under supervision of Jonathan Zittrain, discusses this contemporary issue of copyright law and digital property by a deep dive into one of the legal cases that started it all. Lotus v. Borland explored uncharted territory, as it was amongst the first cases that raised questions specifically on copyright law as it pertained to the protection of computer programs. The ultimate decision reached in the Lotus v. Borland case colored how the U.S. software industry evolved and continues to affect it. By holding that the menu structure and command names of a computer program were not copyrightable, the case may have contributed to the development of the millions of applications available today.

In 1990 the personal computing revolution was underway, and early movers in this largely unregulated space stood to gain millions from creating programs that the average user could master.  Lotus Software, a software company later acquired by IBM, filed a copyright infringement lawsuit against competitor Borland International, alleging that Borland’s spreadsheet program used an identical set of menu commands as Lotus’s own spreadsheet program, which held market dominance at the time. The District Court under Judge Robert Keeton initially issued a judgment holding that Borland did, indeed, infringe Lotus’s copyright, and Borland eliminated the contentious user interface from its software.

Eventually, faced with an appeal by Borland and the extension of the case to the First Circuit under the United States Court of Appeals, the case moved onto the First Circuit. Here, the First Circuit expressed that Lotus’s menus were not copyrightable because they were essential to the method of operation. The case eventually reached the Supreme Court while media coverage and industry followers eagerly awaited the outcome. The government never took an official position on the case because the different parts remained so divided; the Clinton White House supported Borland while the Copyright Office and the Department of Commerce favored the Lotus side. This case ascertains the different departments’ positions by looking at documents released as part of Elena Kagan’s Supreme Court confirmation hearings, and thereby gives behind-the-scenes insights into the legal process.

Eventually, the Supreme Court decision ended in a 4-4 tie—which means that it does not create a SCOTUS-level precedent—and the First Circuit’s previous judgement against Lotus stood. Today, almost twenty years later, software copyright remains clouded. Last year, Oracle v. Google, in which Oracle sued Google over alleged copyright violations of its user interface, was denied review by the Supreme Court.

Studying this case offers readers a practical immersion in legal doctrine, litigation procedure and tactics, policymaking, and business strategy. Students study court and government documents that give insight into the rarely seen debates that shape the official positions on pending litigation. By providing important legal and historical context, this case study challenges students to examine Lotus v. Borland’s influence on the contemporary software ecosystem. 

This case study is based on the syllabus and pedagogy of “Anatomy of a Copyright Case,” a course taught at HLS in Spring 2015 by Henry Gutman, who argued Lotus’s side before the Supreme Court.

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Sexual Assault on Campus: The Problem and the Policy

Women have outnumbered men at U.S. colleges since the 1990s; unfortunately they also outnumber men in another unsettling statistic. An astonishing one in four undergraduate college women are sexually assaulted during their college career, as reported by the latest survey on sexual assault conducted at 27 university campuses, including Harvard and its peer institutions. At Harvard, the reported number of women who were sexually assaulted by force was even higher: a staggering 29.2 percent.

The expectation that institutions of higher education protect against sexual assault was set in 1972 with Title IX of the Education Amendments Act, which mandated that no individual should be discriminated on the basis of gender. That mandate, though, did little to alleviate rampant campus sexual assault, and educational institutions also complained of having little guidance for whether their sexual assault policies complied with Title IX. In response to rising complaints, in 2011 the Department of Education’s Office of Civil Rights (OCR) issued clarifications and suggestions for higher level educational institutions to deal with sexual assault policy. Most recently, President Obama created the Task Force to Protect Students from Sexual Assault in 2014, which focused on assessing the extent of the problem.

Sexual Assault Policy in Higher Education: An Introduction,” a Harvard Law School case study by Elizabeth Moroney under the supervision of Philip B. Heymann, recounts Tufts University’s response to a Title IX complaint directed towards its sexual assault policies. Defending their own revised policies as adequate to ensure an even-handed approach to sexual assault complaints, the university resisted compliance with Title IX’s guidelines and became the first university to revoke an agreement with OCR.

The issue of sexual assault has recently been hotly discussed on Harvard’s campus, from students’ personal stories in the university daily newspaper to responses to recent policies by Harvard Law School professors. Harvard University unveiled the results of its own university-wide survey with a tone of dismay. President Drew Faust issued a recent statement in which she strongly encourages the community towards open dialogue and conversation in order to end sexual assault on Harvard’s campus.
This case is therefore very relevant today in light of the troubling sexual assault climate at many universities across the nation. The case reviews the Department of Education’s “Dear Colleague” guidelines, the common policy options for dealing with sexual assault on college campuses (including “preponderance of the evidence,” “unwelcome conduct,” and “affirmative consent”), and the circumstances surrounding Tufts’ Title IX complaint, noncompliance, and resolution. Participants consider the ethical and legal ambiguities of national sexual assault policy on college campuses, as well as the future of university sexual assault policy. 

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Keeping Conflict at Bay


Golden Gate Symphony Orchestra,” a newly released, multi-party role play case by Scott K. Dasovitch under the direction of Professor Robert C. Bordone, explores the various challenges that a renowned symphony orchestra faces during a complex time of negotiations.

Although the orchestra has operated in a deficit for several years, a donor has just offered a $20 million gift to the endowment under the condition that the orchestra must balance its budget in the upcoming negotiation. In light of this donation, the musicians now call for an increase in wages, while management hopes to keep expenses at bay. As the possibility of a strike looms in the background, the negotiators of the case must come to agreement on a range of issues, from salary and pension to a controversial “smile” policy that would govern musicians’ demeanor onstage. The greatly opposed “smile” policy is particularly intriguing: instituted by the management, it asks the musicians to maintain eye contact with audience members and smile a few times during each concert. The musicians, though, remain unanimously dissatisfied with this policy, claiming that it is an insulting form of micromanagement to their serious art.

An engaging exercise in conflict resolution, “Golden Gate” provides a challenging opportunity for participants to engage in a complex negotiation involving multiple stages and multiple issues. The case is designed as a three-on-three negotiation, though it could also be run as a one-on-one exercise. Because of the complexity of the issues and background, participants should plan to invest time in preparation:  at least 1 to 1.5 hours to read the General and Confidential Information, and an additional hour for the teams of three to meet on their own prior to the main negotiation.  The negotiation between the teams should take place within a four-hour time block.

The case offers a multitude of potential directions for an instructor’s debrief:  the instructor could cover how the groups of three negotiated a process, roles, and their intra-team dynamic; how the teams of three negotiated together to arrive at a substantive resolution (or not); and the challenges of negotiating in a group.

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One Simple Web Tool Spurs Discussion and Buy-In: Spotlight on Berkman Question Tool

What do you get when you cross a brainstorming meeting with Reddit?

The Berkman Center for Internet & Society has taken the best of online forums and crowdsourcing to offer a simple web tool for online or blended discussion. The Berkman Question Tool is a free, open-source discussion tool in which participants can respond anonymously, with a pseudonym, or by name. It can be used for asynchronous online discussion or as a backchannel for in-person discussions. Gene Koo, Fellow at the Berkman Center, said, “It’s an effective way to keep feedback focused, direct speakers to audience interests, and potentially prevent the mic from being hijacked by that weirdo.”

Discussion leaders can create their own “instance” with a short description that frames the discussion. This frame can solicit questions or answers. For example:

  • Add a question you have about the today’s course material.
  • Please post a question you would like to discuss.
  • How can we accomplish X?
  • What opportunities does X provide? What risks?

Participants can go to the unique URL and enter their ideas, no log-in required. Then, they can vote up the suggestions of their peers.

The Question Tool is well-suited for a variety of discussion settings, including conferences, classes, and public debate. By inviting everyone to participate without certain people dominating the conversation, the Question Tool can break the ice and generate buy-in from various stakeholders. By crowdsourcing discussion topics, discussion leaders ensure that they aren’t cherry-picking or leading the conversation too much. The Question Tool provides transparency in the discussion process and a broader perspective for facilitators in service of a larger group. Participants can ask questions without worrying about sounding “dumb” or being judged based on who they are. It strips the conversation of context and bias, approaching the “veil of ignorance” on which John Rawls based his theory of justice.

Professor Charles Nesson used the Question Tool in his online case-based course called JuryX: Deliberations for Social Change. Using video chat and the Question Tool, participants deliberated emotionally charged social issues with empathy and curiosity. To learn more, see the teaching manuals for the JuryX cases: The Snowden Effect; Thinking Big; The Decriminalization of Marijuana; and The Color of Police Action in these United States.

A sleek, mobile-friendly 3.0 with social sharing is in the works. We’ll be sure to announce when the new version launches!

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Talking about the Elephant in the Room: How to Create a Safe Space for Online Case Discussion

Some case discussion groups have the luxury of preexisting rapport, having already achieved affiliation and understanding. But for ad hoc or online case discussion, case-based learners may find it difficult to share honest opinions, making it hard to reach collective understanding on sensitive issues.

3266056756_5631882f3e_nProfessor Charles Nesson has developed an exercise to tackle the Elephant in the Room. This activity, designed for Nesson’s JuryX MOOC but replicable in other in-person and online settings, plays with the spectrum of privacy to broach sensitive and deeply personal issues at a supportive pace.


The exercise begins with an acknowledge of affinity—the group has something in common, some reason for convening that is ripe with the potential of community. This perspective can give participants the sense that rifts can be overcome. It rules out the notion that a change in dynamic is impossible.

Participants are asked to suggest anonymously what the Elephant in the Room is. Participants can the Berkman Question Tool, a web tool that collects responses with the option of anonymity, to enter their idea and vote up (affirm) the suggestions of their peers. (Of course, this exercise is possible using other online or low-tech ways of collecting anonymous responses.)

Together, but without the trappings of identity that can skew actions and judgments, the group identifies the thorny issue. But it is still too dangerous to touch.

Anonymously, participants then share their fears about the Elephant in the Room—why it is hard to talk about, what might come of discussing it. On the Question Tool, participants see the thoughts of their peers, without the judgment that identity invites. They may be surprised by the commonalities that emerge or the perspectives they had not considered. These seeds of conversation and what follows may be difficult, messy, unsuccessful even, but it leaves participants wanting clarity and closure. It makes them participate and struggle through.


Next, students move toward self-identification. Participants choose a pseudonym to complete the next portion of the Question Tool. Here, participants get to play with identity: how much to divulge, what context to cast on their comments, how they might be perceived. They share their hopes for talking about the Elephant in the Room. The anticipation builds. Indirectly, the group is talking about the Elephant and the ways to move forward.


Finally, participants convene to discuss the Elephant in the Room. They have imagined this moment, established common ground, aired worries and objectives that open channels of discussion. Now, they participate by name, and share a personal story about the Elephant in the Room. The stories not only provide a point of entry, but set a non-confrontational tone to the discussion. It can be easy to question someone’s logic, but harder to question how someone feels. At this point, identity has more meaning; participants are more aware of the context behind the discussion.

This exercise has been helpful in building rapport among online discussion groups, but it could also be used to begin negotiations or mediation between unfriendly parties, build community amid deep-rooted bias, or solve problems collectively. Instructors can access the full instructions for the Elephant in the Room module in the teaching manuals of Professor Nesson’s case studies from JuryX: The Snowden Effect; Thinking Big; The Decriminalization of Marijuana; and The Color of Police Action in these United States.

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Improving First-Year Doctrinal Classes

by E. Scott Fruehwald, Contributing Editor at Legal Skills Prof Blog

While legal scholars have written a great deal on improving legal education by adding experiential classes to the second and third years of law school, it is equally as important that law professors make changes in how they teach first-year doctrinal classes. The Langdellian approach to teaching was developed in the nineteenth century, and we have learned a great deal about effective teaching since then. Moreover, law students today are vastly different than the ones Langdell faced in his classroom.

First, professors should not abandon the Socratic Method; it remains a very effective method of teaching students doctrine and “how to think like a lawyer.” However, professors should add active teaching approaches to their repertoire. One active approach is to sometimes use a flipped classroom, in which students learn the material from lectures posted online, and class time is devoted to doing problem solving exercises.

Professors need to add problem solving exercises to all first-year classes. Students need to not only know the law; they must be able to apply the law to facts. I would suggest that professors give a major problem at the end of each unit, with a problem at least once a week. Alternatives could include several short problems in each class, or short analytical papers every couple of weeks. Professors should also do mini skills exercises in class to develop techniques like rule-based reasoning (deductive reasoning), analogical reasoning, distinguishing cases, synthesis, and policy-based reasoning. For example, studies have shown that second- and third-year students are generally weak at synthesizing cases. Legal publishers have recently started publishing textbooks that law professors can use as sources for exercises. Also, professors could have students identify the types of reasoning a judge is using when they discuss cases in class.

Professors should assign short drafting assignments in first-year classes. For example, students could draft complaints, written discovery, and other pleadings in Civil Procedure. Similarly, students could write contract clauses in Contracts. Students will understand contracts principles much better if they have experience drafting contracts clauses.

First-year professors also need to help law students develop their metacognitive skills—thinking about thinking. Professors can use metacognitive questions to help students be conscious about how they reason, think about their problem solving strategies, and even improve their study habits. Examples of metacognitive questions include: 1) how do you read a case?, 2) is your case reading method the most effective it can be?, 3) will the strategy you used to solve this problem work for the other problem?, and 4) will the study methods you used in undergraduate school be effective in law school?.

Finally, law students need detailed formative assessment. Students need to know as soon as possible what they are doing wrong so that they don’t continue the same mistakes. Also, studies have shown that students retain more with frequent formative assessment. Such assessment can include pop quizzes, short papers, problem solving exercises, and self-formative assessment from texts.

Here is suggestion for teaching a first-year torts class: Have the students read several cases on false imprisonment. Before class, they should synthesize a test for false imprisonment in writing. In class, professors should help the students learn false-imprisonment doctrine, using the Socratic Method or lecture. Then, work through several problems in class. Finally, have the students do a short paper in which they must solve a false-imprisonment problem.

Education researchers have uncovered a new world of effective educational approaches. First-year professors need to use these techniques to better prepare students for the second and third years of law school and to turn out better lawyers.

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