Faculty Publications

Perhaps the most remarkable feature of Lessons Learned, a fictional story about a long-time law professor and his relationships with students and colleagues over the course of fifty years of teaching, is that it feels nostalgic and modern at the same time. In the preface, longtime and now deceased Washington University School of Law Joseph H. Zumbalen Professor of the Law of Property Emeritus David M. Becker' acknowledged that either a "third person non-fiction" or "an embellished autobiography" would have been a more conventional approach to his subject, but he chose a fiction story because it allowed him "to depart from personal experience and real life, and to disguise and borrow from others, and especially to completely fabricate." What Becker did not acknowledge is that in using the first-person narrative form, he separated his work from the customary scholarly lens of most legal academics and deeply personalized the lessons taught throughout. In doing so, he exemplified one of the greatest of lawyering skills: the art of storytelling.

This article builds on our prior research about metacognition and its importance for law students’ learning. We hypothesized that given our past findings about the relationship between metacognition and academic performance during the first year of law school, it was possible that metacognition might also play an important role in success with a third-year bar preparation course and/or on the bar exam.

Our current study documents law students’ metacognitive skills during a final-semester bar prep course and examines the relationship between those students’ metacognitive skills and performance in the course and bar passage. We found that students are capable of gaining metacognitive knowledge and regulation skills during law school and even as late as the last semester of law school. We also found evidence that instruction and prompts to practice metacognitive regulation during the first year of law school had a long-term impact on students’ continued use of those skills in their final semester. This evidence is important because we also found, as we have in prior studies, that students’ success in a final-semester 3L bar preparation course, as well as their cumulative law school GPA, is associated with their level of metacognitive knowledge and regulation skills. While we did not find evidence of a direct relationship between metacognitive skills and bar passage, there was a relationship between bar passage and both course performance and cumulative GPA. Accordingly, we contend that metacognitive skills are an indirect support of bar passage given that they contribute to academic success, which in turn supports success on the bar exam. We conclude that, based on the relationship between metacognitive skills, academic success in law school, and bar passage, law schools have an ethical obligation to support law faculty in explicitly and intentionally incorporating metacognitive skills instruction into the law curriculum.

Clerk' offices in federal courthouses across the country designate individuals who do not have counsel as "pro se," a term that comes from the Latin inpropria persona meaning 'for oneself " The term is ambiguous as to the reasons why individuals appear without counsel. While some may purposefully choose not to hire a lawyer, for many it is not a choice.

Access to justice in federal courts requires not just entry into the courts for all litigants, but also fair treatment during the course of litigation. Unfortunately, all unrepresented individuals face disadvantages in federal courts. They are, for the most part, expected to abide by the same rules of civil procedure and substantive law as lawyers, without receiving all the benefits therein.

One example of this unequal treatment is Federal Rule of Civil Procedure 26(b)(3), which provides for quailed immunity from production of documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or its representative unless the seeking party can show substantial need. However, even if the court orders discovery of such material, it must protect against disclosure the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. Thus, an unrepresented litigant, unlike those with counsel, can be ordered to produce materials that contain their mental impressions, case strategy and the like.

This article begins with an overview of the experience of unrepresented litigants in the American legal system. It explores the origins of the right to not have counsel, the reasons why litigants might proceed without counsel in civil cases, and the impact this has on these litigants' access to justice (or lack thereof) in the federal civil legal system. In addition, it examines the number and type of cases involving individuals who appear without counsel in federal civil proceedings. The next section explains the genesis of the work product rule and the purposes it serves, its inclusion in Rule 26 of the Federal Rules of Civil Procedure, and how unrepresented litigants cannot benefit from its coverage in the same ways as those who have lawyers. We survey federal decisions in which courts have considered the application of Rule 26(b)(3) to unrepresented litigants, and compare the approaches taken by state courts. The article concludes with a recommendation that Rule 26 be amended to expand work product protections to unrepresented litigants to equalize their experience in federal courts and improve access to justice.

Much has been written about the reform of legal education over the past 50 years, with its heightened focus on teaching a broad range of lawyering skills and professional values through experiential learning.
Clinical legal education has long recognized the importance of instilling reflective practice as "the key skill set of lifelong learners." In other courses, law faculty have come to understand the importance of teaching
students to be self-regulated learners in order to prepare them for confronting new and complex problems in the practice of law.
To better support law students' learning and academic performance, as well as passage of the bar exam, law schools are seeking to understand what factors most influence students' success with those efforts.

As law schools in the United States reevaluate the content and teaching methods of legal education, legal educators have begun to rethink not only what to teach, but how to teach it so as to best position students for success in law school, on the bar exam, and in the profession. Law students must also understand themselves as learners and commit to learning about their learning. Metacognitive skills, which involve awareness of one’s learning and the ability to regulate one’s learning, are an essential part of the repertoire of lawyering skills that enhance the learning process for law students and better positions them for practice. This article contributes to growing body of research focused on improving law students’ learning.

The article discusses a mixed methods empirical study of first-year law students to determine whether instruction and prompts to engage in metacognition would influence students’ selection of learning strategies and their ability to regulate their learning during the semester. In addition, it explores the relationship between students’ metacognitive skills and their academic performance. As a corollary, the article assessed the methods for measuring metacognition in the context of a semester-long law school class.

As we discuss, we found a correlation between our quantitative and qualitative methods. In addition, students who demonstrated strong metacognitive skills were more likely to perform well in the class. Moreover, adding instructional intervention throughout the semester prompted students to use more active learning strategies that require them to engage with the material they have learned, such as writing out a sample essay response, talking about it or teaching it to peers, or testing their understanding by responding to questions. However, we did not see significant differences in the metacognitive development of students who received more instructional intervention. Anecdotal evidence shows that students may be more likely to make changes to their strategies when they are prompted to do so in conjunction with feedback from formative assessments. The mixed methods approach provided useful snapshots about student metacognitive knowledge and regulation, but was less effective for assessing changes in metacognitive development over time.

The article concludes with a discussion of the implications of the study’s findings for legal education, focusing on teaching and assessing metacognitive skills in law schools, as well as proposed areas for future research on the metacognitive skills of law students.

This article serves both to frame The Pedagogy of Procedure symposium it introduces and to itself explore the importance of metacognition and learning about learning to legal education and lawyering. The authors begin by suggesting why Civil Procedure doctrine is so challenging to teach and learn, noting how the symposium pieces help to tackle those challenges. They then join the growing number of law professors who advocate that learning how to learn deserves greater attention in the law school curriculum, suggesting that law schools should do more to demonstrate respect for the process of learning as an end in itself. They especially extol and explain the use of metacognitive strategies to help students develop greater self-sufficiency and proficiency in confronting learning challenges of any kind, Civil Procedure or otherwise. They highlight metacognition because of its importance to self-regulated learning and its benefits for professional development. To do so, they draw upon the literature in this area, from law faculty and from faculty in other disciplines, to create a helpful mini-primer-plus for use in Civil Procedure and other doctrinal courses. They close with suggestions for how law schools can show more institutional respect for learning as a subject worthy of independent attention.