Thanks to Julia Belt (Wisconsin) who responded to my inquiry as follows:

 

Based only on one instance, I remember a student who followed his
undergrad practice of getting everything he could down on his
computer. He realized that did not work in his law classes. He said he had a lot
of notes, but couldn't really get anything from them. Typing
everything that is said in a typical big section quasi-Socratic dialogue class is
probably not useful.

You can get a taste of that in a book by Prof. Elizabeth Mertz, "The
Language of Law School" which gives us transcriptions of law school
class discourse. The book gives us brief excerpts from various classes, but
one can see that using a transcription of even one class period would
be mind-numbing.

Thanks to Robin Boyle (St. John's) who responded by pointing out the article, Adopting a No-laptop Policy in The National Jurist, March 2008 issue, on page 22. While the article does not explicitly discuss transcribing, it contains interesting information about learning styles. It also reports results on the learning success of students in classrooms where laptops are prohibited versus those where they are not. While not a controlled study, one professor's students did receive higher scores on the same multiple choice questions when laptops were prohibited.

In addition to Virginia's insightful comment, I received many helpful and interesting e-mail comments in response to my previous post about using computers to "transcribe" class notes.  This is the first in a series of posts that will report those comments.

Ann Enquist wrote an article, Unlocking the Secrets of Highly Successful Legal Writing Students, that studied student success in their legal writing class.  She discusses the note-taking habits of the most successful students in Section IV, B, 1. (page 19 of the copy I downloaded).  She found that the students took extensive, though not verbatim, notes.  They reviewed the notes outside of class.  See the article for further discussion of these students' note-taking habits.

 

For anyone interested in obtaining the final version of my article Lawyering Skills, Principles and Methods Offer Insight as to Best Practices for Arbitration, 60 Baylor L. Rev. 1 (2008), it is now available!

 

Today some of my colleagues were discussing potential drawbacks of students using computers in the classroom.  Some felt that one of the major drawbacks is that students simply "transcribe" everything that is said rather than engaging in selective-note-taking, and the class.

I am interested in learning more about this because I talk often with my students about note-taking, learning styles, and study habits.  I am wondering what your thoughts about this are.  Please share them with me by commenting or clicking here. 

If you are a professor, do you agree that transcribing is a poor way of learning?  Have you noticed that students who transcribe tend to do less well?   Is transcribing on a computer different than taking comprehensive handwritten notes that extensively cover almost every word that is said in class?  Does the effectiveness of transcribing differ from person to person, depending on the student's learning style and what else the student is doing to engage with the material?

Does anyone know of any research on this topic?  I can imagine that those that study academic support principles, learning theory, or learning styles might have information about the differences between handwriting notes and typing notes, as well as the differences between selective note-taking and comprehensive note-taking.

If you are a student, do you tend to type everything that is said?  If so, do you do well in your classes?  Poorly?  Are you also following along, thinking, and answering questions raised by the professor to yourself at the same time you are transcribing?  Do you review the transcript later to correct mistakes, clarify statements, and write down your questions about the material?  Do you review it again when you are outlining to prepare for the paper or exam?

In the interest of full-disclosure, while I attended law school before the dawn of the computer-in-the class era, I was notorious for taking comprehensive notes.  Many of my peers, should they need to miss a class, would rather have had anyone else than me take notes for them.  They would elect to use selective notes that doubtless missed more than one key idea over near verbatim notes that did not differentiate between important and less important ideas.

That said, I realize that multi-tasking is not typically as successful as focusing on one task.  I am open to the idea that focusing on transcribing may detract from a student's ability to focus on engaging with the class.

My students put together a very helpful list of tips for other students engaging in their first appellate oral argument.  (Students doing their second or third one might also find it helpful, as might practitioners doing their first.)  Their google document can be linked to here. 

E. Joan Blum and Kathleen Elliot Vinson have recently posted their article Teaching in Practice: Legal Writing Faculty as Expert Writing Consultants to Law Firms.  If you, your law firm, or other legal organization are thinking about hiring a writing consultant, you will likely find the article highly informative. 

 

The article discusses the pros and cons of using a consultant and the various types of consulting.  The pros include permitting senior lawyers to focus on tasks other than intensive mentoring and tapping a full-time professor's legal writing expertise.  The cons include the necessity for a long-term relationship between the firm and the consultant and the potential for the professor's other demands to detract from the relationship.

The types of consulting are group seminars for supervisors, group seminars for associates, group seminars for summer associates, and individual coaching.  The seminar for supervisors trains senior lawyers to serve as legal writing mentors to associates.  The seminars for associates and summer associates focus on particular writing skills.  Individual coaching consists of either one-on-one long-term coaching of a particular individual or of individual meetings with the professor during weekly office hours.

The article mentions continuing legal education ("CLE") as another option for learning from the expertise of legal writing faculty.  I believe that, in some jurisdictions, attorneys can receive CLE for auditing law school classes.  Additionally, legal writing faculty speak often at university and academic events which practitioners would likely be more than welcome to attend.

 Last week, without much fanfare, the Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc., U.S..  There has been some discussion of the decision's impact on employment arbitration and potentially on labor arbitration. 

 

I confess to being "on the fence" about the result, but the opinion does raise some interesting points.

First, practitioners who are drafting arbitration agreements should be aware that they will not be able to rely on the Federal Arbitration Act ("FAA") as a basis for expanding the review of the District Court.  The Court holds that the statutory grounds for "vacatur and modification" are exclusive and may not be "supplemented by contract."  (The Court notes, however, that there may be other means of enforcing a contracted for standard of review.)

Second, Justice Souter, writing for the majority, makes several statements that raise interesting questions about why parties choose to arbitrate disputes and that implicitly address the ongoing debate about what the goals of the arbitration process are. 

He notes that "any other reading [of the FAA] opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process . . .'"  His understanding is  that arbitration should be an expedited alternative dispute resolution process.

Relatedly, Justice Souter points out that there is a dispute as to whether limited review will encourage parties to abandon arbitration for the courts or whether the ability to expand review will encourage parties to abandon the courts for arbitration.  Either way, the premise is that expanded review encourages arbitration. 

I believe that for some parties limited review encourages arbitration precisely because it does guarantee an expedited, less-time-consuming, less expensive procedure.  These parties want assurances that they will not unwittingly contract into a situation where arbitration is the first step in a long drawn out litigation process. 

For other parties, the ability to expand review may increase the likelihood that they will arbitrate because they are more interested in confidentiality and the ability to select the  decision-maker. 

This raises interesting questions about the goals of arbitration.  Should the ultimate goal in every arbitration be an expedited procedure or should other goals such as confidentiality and selection of the decision-maker matter equally?  Should parties be able to simply privatize the trial court procedure?  If de novo review is available, arbitration looks, in some aspects, less like an alternative dispute resolution procedure and more like a substitute trial court.  On the other hand, without procedural safe-guards, the dispute resolution mechanism may not ultimately serve as a satisfactory means of solving the parties' dispute.

Moreover, there are a host of other reasons that parties select arbitration beyond the level of review, its expeditious nature, confidentiality, or the ability to choose a decision-maker.  These include the ability to tailor rules and procedures to the parties' needs, the equitable nature of the process, the ongoing relationship of the parties, admissibility of evidence not typically admitted at court, and potentially creative remedies.  Of course, only empirical research could ascertain what impact, if any, the ability to contract for an expanded standard of review would have on the level of use of arbitration.

This week was our last Basic Legal Skills class of the year!  We did an exercise to gain some practice at oral argument.  Each student attempted to tell the class the most important thing the student learned in Basic Legal Skills.  The rest of the class interrupted with specific detail-oriented questions about legal writing.  (If you are a professor interested in using this exercise, I am happy to share my list of questions.)

The students performed admirably (and enjoyed themselves).  Here are the tips that the students shared.  (I have taken some poetic license.)

Legal writing differs from writing in many other disciplines.

It does not require providing long and detailed explanatory background but rather quickly getting to the issue and addressing it concisely.

Short sentences further this end.

Additionally, the legal reader is not interested in the legal writer's opinions.

Instead, the reader desires to know the governing law and how it applies to the facts.

Knowing how to read a case is a first step to being a successful lawyer.

The successful lawyer understands that each case builds on the prior ones and analogizes to precedent.

Drafting a well-thought out outline before writing can insure a well-organized paper.

A well-organized paper is easy to read; using headings, sub-headings, and thesis sentences increases organization and readability.

Writing a rough draft is a key component of legal writing; you must permit time to do this.

Moreover, allowing plenty of time to complete the draft and then finalize it insures that the writing is not done last-minute and is not replete with embarrassing errors.

Toward this end, a time-management plan is critical; through it, you hold yourself accountable.

A citation manual is your "friend."

Indeed, owning citation, grammar, and legal writing sources and knowing how to use them relieves you of the responsibility of memorizing every rule.

Generally, using concrete facts is more persuasive than using many adjectives.

Having a colleague who knows the basic rules of grammar read your work is helpful.

To write a predictive memo, you must be able to understand the question asked, identify the arguments on both sides, identify the relevant portions of case law, and edit.

To write persuasively, you must be able to deemphasize negative facts and case law, choose a rule favorable to the client but likely to be adopted by a neutral judge, and lead with the strongest argument.

Succeeding in legal writing is a balancing act:  rule synthesis, application of rules to facts, large-scale organization, small-scale organization, grammar, writing style, and citation must all be considered.

When serving as your client's advocate, draw on many techniques, such as presenting the facts persuasively, citing the strongest authority you can find, and presenting a professional appearance through proper citation.

Lawyers have difficulties too:  when times are rough, a friend can serve as a shoulder to cry on.

 

Another tip that Chief Justice Roberts shares with Bryan Garner is a great method to prepare for questions from a judge who is not as familiar with the legal area as you are.  His Honor states that you should be able to tell a lay person in five minutes, or less, what the case is about and why you should win.  If the lay person cannot understand what the case is about or does not see why you should win in that time, his Honor suggests that you need to rethink the argument again.