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Grose, C --- "Outcomes-based education one course at a time: my experiment with estates and trusts" [2013] LegEdDig 35; (2013) 21(3) Legal Education Digest 12

Outcomes-based education one course at a time: my experiment with estates and trusts

C Grose

Journal of Legal Education, Vol 62, No. 2, 2012-2013, pp 336-366

Over the last five years, the legal academy has been under pressure to ‘reform’, with the three most prominent and widely cited sources of this criticism charging that legal education does not adequately prepare students to be lawyers. The three sources are the Carnegie Foundation for the Advancement of Teaching, description by various members of the legal academy of ‘best practices’ in legal education, and a report issued by the Outcome Measures Committee of the American Bar Association Section of Legal Education and Admissions to the Bar.

In the aggregate, these reports challenge law schools to radically rethink the delivery of legal education by starting at the end and working backwards. The current buzzword for this kind of education is ‘outcomes-based’ education.

The idea of ‘outcomes-based education’ is hardly new. Moreover, many institutions of lower- education – e.g, elementary schools – follow a four-step structure for curriculum design and review developed by K-12 scholars, Grant Wiggins and Jay McTighe.

With outcomes-based education, course planning happens in reverse. The educator starts by identifying the desired results and then the evidence necessary to determine that the results have been achieved. Only after the results and assessment tools have been clearly specified does the educator plan the teaching needed to equip students to successfully meet assessments of whether the outcomes have been achieved.

Thus in planning and ultimately delivering my Estates and Trusts course for the first time, I started by identifying my desired outcomes. In Stage II, I identified what evidence I would need to determine whether students had achieved these goals. Having identified such evidence, I designed assessment tools and activities that would measure it and help me determine the level of proficiency. Stage III involved designing instruction tools and teaching activities geared toward helping students gather the evidence necessary to allow me to assess whether they were achieving the outcomes. I planned to teach toward my goals. And finally, in Stage IV, I reviewed the whole process – one goal at a time, one class at a time, one assessment tool at a time – to figure out how I as an instructor had succeeded or not – at designing and delivering the course from end to beginning.

The first in the four-stage curriculum or course design protocol I am calling ‘outcomes- based teaching’ is identifying curricular or course outcomes. This method depends on educators’ intentionality and transparency about their teaching goals and the connection between those goals and everything that follows – the assessment tools, the classroom activities, the instruction.

For this stage of the inquiry, consistent with the process described above, I asked: What should students leave my course understanding, knowing and being able to do? What enduring ideas and concepts will they take from the course?

I determined that for me, this stage of inquiry involved identifying and describing outcomes that combined an exploration of professional identity and contextual knowledge.

I had by now travelled higher up the spiral of outcome determination, beginning from the very broad question of what a law student should know, understand and be able to do. I then considered a slightly narrower inquiry into what a legal professional knows, understands, and is able to do. At that point, I took up the question of what an estates and trusts lawyer knows, understands and is able to do. I arrived finally at the pinnacle inquiry into what a student in an introductory estates and trusts survey course taught by someone steeped in the professional literature and pedagogy of narrative and clinical theory should know, understand and be able to do.

After working through this process, here is what my syllabus describes:

The overarching story of estates and trusts law is about planning for and communicating about transferring assets and/or decision making and other powers from one person or entity to another person or entity, usually across generations, usually as a result of death or incapacity.

The stock characters in the story are the person who has the assets or power (the transferor), the assets or power themselves, the person or entity to whom the assets or power are being transferred (the transferee), the lawyer who plans for and facilitates the transfer, the administrative actors who facilitate the transfer. The specific characters depend on the context in which the story is being told (e.g, which instrument or instruments), and might include legally extraneous but nonetheless relevant characters like disinherited or forgotten spouses or children, same-sex partners, disabled children, charitable organisations, etc.

An estates and trusts lawyer, therefore, needs to be able to identify the various plot lines and characters that might present themselves to him in a client’s situation; he must be able to figure out how the relevant law or laws interact with those characters and plot lines, and to explain that interaction to his client and he must be able to work with his client to construct a story or stories that meet his client’s needs.

These characters and stories provide the framework for this course.

The next stage in the process is designing an assessment program for the course. Tempting as it might be to start trying to design teaching and learning activities that will help students achieve the outcomes the educator has identified, Wiggins and McTighe urge teachers to emphasise first the importance of clarifying what desired outcomes look like in practice.

In this way, outcomes-based educators will teach transparently and authentically what they ultimately will assess, rather than looking backward and assessing what they may have taught.

Criteria-referenced assessments describe explicitly and in detail the skills and abilities students should demonstrate for the particular assessment and the grounds on which the teacher will assess the students’ demonstration of those abilities and skills. According to Best Practices such assessments fit the theory of outcomes-based teaching ‘by matching learning objectives with assessment items’ and therefore testing students’ ability to achieve the outcomes described to them by the instructor.

A formative assessment provides feedback to faculty about whether the student is achieving a particular outcome but also provides such feedback to the student, thereby serving as a learning tool in and of itself. Unlike a single exam at the end of the semester, which provides ‘no navigational assistance’, formative assessments involve feedback – often instantaneously – aimed at improvement.

Finally, authentic assessment confronts students with ‘real-world challenges’. Such assessments are formative as well, meant not only to test but to ‘teach students (and teachers) what “doing” a subject looks like and what kinds of performance challenges are considered most important in a field or profession.’

Designing assessment tools that are criteria-based, formative and authentic is a first step. Next, teachers must determine whether the tools effectively measure the outcomes they are designed to measure. Are they, in other words, valid, reliable and fair?

This kind of assessment-criteria-based, formative, authentic assessment that is reliable, valid and fair-is not simply one tool. These assessments need occur in the context of the evidence being sought and the outcome being taught. For example, basic knowledge may be suitably tested by a multiple-choice quiz, but measurement of deep insight may require contextual performance. Given that effective assessment takes many forms, teachers should use a variety of assessment techniques throughout the semester.

I found I could not simply move from Stage One (identification of outcomes) to Stage Two (assessment) in a purely linear fashion. Instead, I realised that my goal for students to take on roles as competent estates and trusts attorneys needed to be broken down into two distinct but related pieces: knowledge and understanding of basic estates and trusts doctrine and the ability to apply that doctrine in the context of the lawyer-client relationship, which might include interviewing, counselling, drafting and more.

Based on this insight, I determined that I needed two kinds of assessment tools: those that would quickly alert me and the students to how well they were grasping the basic black letter law laid out in the case book and those that would give the students the opportunity to apply that black letter law to real life practice situations, thus enhancing their understanding of the law in the context of practice.

These two sets of assessment tools ideally, would work in complement. Lack of success on either instrument would alert the student and me to the need to go back and reteach and relearn the foundational principles and how they apply in context.

Here is what I ended up with, as described in the syllabus: The course is divided into roughly three units: wills, non-probate instruments and trusts. Each unit will end with a 10 to 15 question collaborative quiz on the doctrine covered in that unit.

Before each class, you will be asked to write a creative reflection on the reading assigned for the class, organised around a fictional client (of your creation) and her estate planning issues. You will revisit your writing at the end of each class and offer that client concrete advice based on the class discussion. You will turn in the entire written project at the end of the semester, for pass/ fail credit.

The final project of the course will involve some kind of review of a client file, with the assignment to develop an estate plan and/or draft some kind of estate planning instrument. There will be no final exam in addition to that project.

Each student should expect to be called upon at least twice during the semester, and asked to present a case or problem that has previously been assigned. Such interactions will be Socratic in nature, with the professor following up on the student’s initial presentation with clarifying questions and/ or requests for further information or analysis. The goals of these dialogues are (1) to further the student’s understanding of the particular question, (2) to further the class’ understanding of the particular question and (3) to help the professor assess how well the class is absorbing the material.

The collaborative quizzes will work as follows: I will hand out the quiz, containing 10-15 questions on material we have covered in preceding classes. You will have 20 minutes to take the quiz, and turn it in. I will then put students into groups of three or four and hand out one copy of the same quiz again. You will have 25 minutes as a group to take the quiz and turn it in. We will review the quiz and answers in the following class.

My goals for each quiz, in general, were: (1) to give students an opportunity to test themselves on how well they had learned the doctrine; (2) to give students an opportunity to teach each other the doctrine we covered; (3) to pull together the pieces we covered; (4) to give me information on how well I succeeded in teaching the doctrine; and (5) to give me an opportunity to see how it all fits together.

By the time these review sessions took place, I had graded all the quizzes and returned them along with detailed explanations of the correct answers. So I began the review class with a slide listing what I had identified – by the number of wrong answers – as the questions that had been most difficult and asked for questions or comments about them.

As I went through the materials the previous summer, trying to get a handle on the doctrine and scope of the course, I kept asking myself, ‘Why would a lawyer ever need to know this? What does a lawyer do with all of this?’ I found that the more I imagined the answers to those questions – which for the most part were simply to counsel clients – the better I understood the particular doctrine. So the creative writing exercise began as a way to help students achieve the outcome of learning the doctrine of estates and trusts, with an eye toward counselling clients.

At the beginning of each class, I asked for a volunteer to read his or her story for that week as a framework for us to analyse the doctrine. Students were able to assess their this skill by how well they could answer their classmates’ questions about their own client story and by how well they were able to think of questions to ask of others. A portion of the final project asked the students to reflect on their creative writing projects and their responses confirmed my sense that this had been an effective assessment tool.

Moving into Stage Three, I needed to figure out learning activities for the course.

To most effectively design a course that leads students to succeed in achieving the identified learning goals, the literature says teachers should approach this work from a macro perspective. Also, by looking at the big picture, teachers are likely to use multiple teaching methods throughout the course and not feel pressured to do everything all at once in each class.

Educational theory posits that use of multiple methods enhances adult learning by challenging students to engage in different activities and come out of their comfort zones from time to time.

I wanted my students to begin to develop a sense of their professional role as lawyers and to understand the contours of the lawyer/client relationship in the context of client representation.

I built my lesson plan for each topic around the assessment tools I had identified as best reaching particular aspects of the client representation outcome.

I figured if discussion and role-playing – two of the tools I am most comfortable using – work well to reach the outcomes I had identified, why not use them? I decided, consistent with this theory, that my main teaching mode would be small- and large-group discussion of problems and questions, interspersed with role-plays. In addition, I anticipated the potential need for some lecture and Socratic dialogue to focus the discussion and/or highlight particular points of law.

My challenge throughout the semester was how to connect my presentation of the doctrine to the goals/outcomes of the course. I came up with two substantive guidelines that framed the small- group and discussion work we did: (1) Frame the rules/doctrine in terms of professional identity, e.g, what kind of lawyering is this? Does this implicate? and (2) Frame the rules/doctrine in terms of storytelling, e.g, what are the plot lines here? The characters? The context?

Thus in each class, with each point of law, I put a statute or case up on PowerPoint and then challenged the class in groups of three or four to perform the legal analysis and critical thinking to figure out how the rules applied to their client, whether the rules made sense, how they fit with each other, what the underlying themes were and how the rules fit in with that theme.

These guidelines also enhanced the role-playing I had the students do. They engaged in one consistent and thematic role-play throughout the semester, namely the ‘lawyering’ they did in their creative writing project. At the end of each class, they were given the opportunity to revise or expand their advice, based on the work we had done during class. Thus, the client narrative exercise was a way of engaging the students in doing the analytic work necessary to be a competent estates and trusts attorney.

The more doctrine the students learned, the more complex their fact-gathering became. The more complex their fact-gathering, the more likely they were to elicit fleshed out client stories.

My overall outcome was to get them thinking critically as practitioners and professionals. My means of achieving that outcome was to have them engage in the lawyer-client relationship as professionals.

Having discussed determination of outcomes, development of assessment tools and teaching methods/delivery, the course planning process would seem to be finished. However, the final phase, evaluation, is perhaps the most important.

With this inquiry, the designer constantly evaluates how he or she is succeeding in the planning and implementation process, with the ultimate goal, of course, to have his or her students achieve identified outcomes.

I had identified the goals of professional identity and the lawyer-client relationship because I believed that they fit best within my professional and personal understanding of training a competent lawyer. I found the evaluative exercise of referring back to those goals limiting but in a comforting way. The universe of assessment tools and teaching activities was not infinite.

Thus in planning the course, I went through the materials multiple times in different groupings to identify the goals of each one and to make sure the activities I had designed facilitated achievement of those goals.

Furthermore, I found that the recursiveness of the process, and my deep understanding of the relationship among the four stages, allowed me to be transparent and non-defensive with the students about why the course was designed the way it was and why particular activities or topics played out the way they did. Having a statement of outcomes in the syllabus allowed me to refer back to my course-design process and to explain my thinking without feeling like the students and I were playing a game of hide the ball. This transparency alone marks such a departure from the traditional law school teaching and learning experience that I found it refreshing and liberating.

As for whether this approach worked for my students, I think the answer is mixed. The highest marks I received in my student evaluations were in answers to questions about opportunities for self-evaluation and the practical application of legal concepts. The students found the small group work in the classroom effective as a tool that ‘helps us stay on track and make sure we are prepared for the day’. They appreciated the quizzes as ‘really helpful in solidifying [their] understanding of the material’. And they found the creative writing assignment ‘fun’, ‘novel’ and helpful, not only in learning the material, but also in developing ‘critical thinking throughout the course’. However, some of them complained about the lack of ‘substance’ in the course, and suggested that client counselling could be taught in a clinic or interviewing and counselling course instead of in a ‘doctrinal’ estates and trusts course.

I take from these observations that I did not succeed in making clear enough the connection between my goals of helping them develop as professionals and my methods of doing so.

My understanding of the connection among goals, assessment and instruction deepened as the course proceeded.

Based on the answers to these reflective questions, I will refine the statement of outcomes in the syllabus. I will adjust the creative writing and interview exercises to more neatly fit within those outcomes. I will tighten up the quizzes and small group discussion questions. And through it all, I will consider and reconsider my outcomes. So here I am, right back where I started, ready to do it all over again.

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