My law professor gig is now going on two years plus. I’ve learned a lot about teaching. (As the Zen expression goes: “a good teacher always remains a good student.”) Here’s one lesson: yes, teach doctrine, yet also teach mindsets—that is a way of thinking. The first changes and fluctuates while the second is constant and steady. Mindsets are, in the lingo of our students, “Boss.” I am still stuck on when it was cool to say “Money.” But in either event, here are five mindsets I discovered while teaching.
No. 1 : The Right Word v. The Almost Right Word (Part 1)
That’s Mark Twain: the difference between the right word and the almost right word is the difference between a lightning bolt and a lightning bug.
In my First Amendment class we discuss the Gertz decision in which the U.S. Supreme Court held that a private person was transformed into a public figure if the person “thrust” themselves into the forefront of a public controversy. (If so, it is much more difficult for the person to sue the media for defamation on reporting on their public persona.) I ask the students: Why did the court use “thrust”? What other words could it have used? (“interjected” and “involved” come to mind.) What was the court’s purpose in picking one word over another? The court wanted to narrow the number of those who became public figures. This method is portable to practice. Why did the other side use this word in a document and not another? The mindset payoff is remembering that words matter and that they matter a lot.
No. 1: (Part 2)
Consider the word “abide.” It appears 127 times in the Bible. It also appears once in The Model Rules of Professional Conduct (Rule 1.2) as in a lawyer “shall abide” by a client’s decision as to objectives. In both contexts it means “to bear patiently.” Other words could have been used. My class suggests “accept” or “acquiesce.” But the drafters picked “abide,” I think, because it imparts this message: a lawyer’s independent judgment may strongly urge a different objective, and a lawyer need not abandon that belief, yet in the end he submits to the client’s decision. Whether God and Job or you and your client. Let’s “abide.”
No. 3: Create a Powerful Visual: Coming to the Crossroads
Ever watch “Scent of a Woman?” Al Pacino plays a bitter and blind Army officer. A prep school student is his caretaker for the Thanksgiving weekend. The student saves Pacino’s life while risking his own. Upon the student’s return to school, he is put on trial before the entire school and Honors Board for refusing to rat out fellow students who played a prank on the Headmaster. Pacino comes to his aid, says that he does not know whether the student’s actions are right or wrong but he does know this: “Now I have come to the crossroads in my life. I always knew what the right path was. Without exception, I knew, but I never took it. You know why? It was too damn hard!” His point: The student is making a hard choice, not an easy one and a choice with dire consequences for him (i.e. expulsion). I play this clip on the first day of class in Professional Responsibility. I tell the students to ask themselves in the cases we read of lawyer disaster, how many opportunities did the lawyer have to take the right path? (Usually several.) I then ask: “Why did the lawyer not do so?” And in unison or one-on-one (depending on how I teach that day), the students say, “Because it was too damn hard.” A lesson I hope stays with them for their entire careers.
No 4: Your Hands are Your Friends
Effective Oral Communication also resides in my portfolio. Often cited as a student concern: “What do I do with my hand when I am giving a talk?” Thus this mindset: use to demonstrate temporal proximity; enhance your message (say “if you remember nothing else I ask that you remember this” and then hold up your index finger); deploy as an inviting gesture when someone raises their hand to ask a question. That’s the great thing about a mindset: it’s transformative, and what once dragged you down, now lifts you up.
No. 5: Get to the Point
This is a mindset I seek to teach in all of my classes. Most recently I used it in Professional Responsibility. In that day’s lesson plan I was teaching that the Model Rules prohibit a sexual relationship with a client unless the sexual relationship pre-dated the attorney/client one. So I created this entry point: I posed a hypothetical to the students in the form of a telegram from one law partner to another. (They know about telegrams from old movies.) They must respond in the telegram format and they only get five minutes to do so. Here’s mine: “Tonight’s the night. STOP. Having dinner with our divorced client. STOP. Been a long time without rain. STOP. I am in love. STOP.”
Two students came up with this: “The desert stays dry. STOP. There shall be no rain.” STOP. Reference Model Rule 1.8 and Comments. STOP. Unless it has rained before. Stop.” A-plus.
A mindset is a hack. They make teaching and practice for that matter easier. They effectively minimize cognitive load and effectively maximize cognitive processing power. Mindsets: Get one.