Our Students, Our Selves: The Mirror Reflects Back

• Author: Michael A. Mogill
• Position: Professor of Law
• Pages: 317-350

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I Introduction

Curiosity can be a double-edged trait. It can open the door to unknown treasure, yet at the same time can lead to unperceived peril. Harry Potter was always driven by his eagerness to discover things, a desire to be informed. During the first book in the series,¹ Harry's quest for the titular Sorcerer's Stone led him on many adventures, one of which resulted in his entering a room in the mythical School of Hogwarts that contained "a magnificent mirror, as high as the ceiling, with an ornate gold frame, standing on two clawed feet."² The inscription on its top read, "Erised stra ehru oyt ube cafru oyt on wohsi."³ As Harry was to learn, this was the "Mirror of Erised," which "shows us what we want . . . whatever we want."⁴

Students enter law school with their own wants, one of which is an initial seemingly boundless eagerness to learn and know. Over their three years of indoctrination into the process of "thinking like a lawyer," a good portion of that enthusiasm diminishes. Much of that change can be observed in the frustrated comments of students who just want to "know the answer" to the questions spun out during the classroom dialogue. One of my colleagues has suggested that the much-used Socratic dialogue offers up "a game that only one can play;"⁵ many students experience frustration when each of their questions is met with the rejoinder of yet another question.

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Students also enter law school with their own fears of the unknown path ahead. As Chair of our school's Orientation Committee, I have made note of many of the comments provided in a survey completed by the incoming 1Ls at the end of our multi-day orientation program. Among these have been the following:

* "I think law school will be very stressful";

* "I am glad you tried to make this seem a little less nerve-wracking";

* "My mind is more at ease";

* "I still have some tension of the first day";

* "I hope I will start feeling more relaxed";

* "Should I still feel lost?";

* "You helped to alleviate many of my fears, my misconceptions, my overwhelming feelings";

* "You calmed me of some of the fear of ridicule in the classroom";

* "Most of my feelings of apprehension were wiped out";

* "It made me feel confident for the first time all summer about my law school decision";

* "It made me feel welcome in law school";

* "I felt very good coming out of Orientation"; and

* "I know that my comfortable feeling will pass as soon as classes get going but it was a comfortable feeling to have."

The question presented (i.e., the "issue") is how to enhance the curiosity of our students while assuaging their fears and possible alienation from the learning process. The "holding" is not simply stated but may best be found by making use of an either untapped or underutilized resource- the students themselves.

Consider for a moment the means we as teachers employ in our quest to train budding lawyers: books, tapes, documents, computerized learning aides, smart boards, chat rooms, and whatever else technology will introduce by the next day's class time. We share our own histories, our war stories, and sometimes we augment these with stories of the attorneys and litigants involved in the cases we have read.⁶ This use of storytelling acknowledges that "lawyers are storytellers, using stories as a means of solving problems for clients."⁷ It recognizes the limitations posed by case analysis, as casebooks tend to often omit human elements, instead focusing on the identity and analysis of rules, thereby becoming quite "mechanical"Page 319 in the process.⁸ In contrast, storytelling allows us to use the "raw material" of personal experiences, thus describing accounts of actual happenings, with stories helping to construct a broader theme or meaning in the form of a narrative.⁹ Indeed, in recent years, whole courses have been taught in "storytelling."¹⁰ Nor are the lessons of storytelling lost on the practicing bar, whose members have taken storytelling classes after the culmination of their days in the ivory tower, perhaps as "an antidote to the harmful side effects of a law school education."¹¹

Perhaps it is our own shortcoming as teachers that has led us to fail to note an invaluable resource to the learning process-our very own students. Through years of service on our Admissions Committee, my colleagues and I have perused the personal statements of applicants, going beyond the mere numbers provided by LSAT scores and GPAs to select students whose vocational, experiential, and academic backgrounds will add to a more diversified and enlightened class of matriculants. But once the students arrive and settle in our seating charts, many of us have failed to use this very human resource as an aid in the learning process. We reflect questions back to our classes ("What do you think?"; "How would you suggest this be resolved?"; and, of course, the ever-popular "Why/why not?"). Yet, as that "mirror" of students responds to these inquiries, we tend to forget that these lawyers-in-waiting have brought with them experiences which can serve to make the law "real"¹² for them as individuals, for their colleagues, and for their teachers. And so the question remains how we can best strive to utilize this untapped resource. Perhaps, as with the Mirror of Erised, our students can "show us what we want . . . whatever we want."¹³

This Article represents the author's attempt to forge a method to engage his students in the classroom dialogue through the use of each student's life experiences. It was conceived from a simple classroomPage 320 incident which was not only instructive to that day's materials, but which even more fortunately led to students sharing their own events, enhancing the dialogue among and between students and me. Part II of this Article describes the method for the use of the students' life experiences in the classroom environment. Part III discusses specific examples of the use of this technique, in addition to suggesting how it assists in learning the course materials, accrediting students, fostering relationships, and enhancing the student's professional experience. Part IV reveals student response to this technique, indicating how this technique aids the student's law school education and development as a budding professional. In essence, this article differs from traditional storytelling. It is not told from the perspective of the teacher, nor from that of the lawyers, litigants, and other participants in the legal process. Instead, we look here at stories as told by those who are the problem-solvers to be, the students themselves. These "voices," new to the academy, can be most instructive to the classroom dialogue. They are as broad as human experience and the imagination allow. This extra taste of "reality," from the student perspective, has been sorely missing from the academy. It is long past time to listen to the stories that the mirror reflects back.

II The Method: "Card Blanche" Prevails

One of the courses that I teach is Torts. The casebook that I use stresses both the "personal accountability and social responsibility for injury," even using the phrase in its title.¹⁴ It was the fall semester, 1998, and the day's assignment addressed the affirmative defense of assumption of risk, specifically the express assumption by the injured plaintiff. We were discussing a case in which the plaintiff was injured in a fall near the edge of the defendant's swimming pool at the defendant's gym.¹⁵ The defendant was ultimately granted its motion for summary judgment on the negligence claim, the court finding that the plaintiff had agreed in its membership contract to assume complete responsibility even for injuries caused by the gym's negligence.¹⁶ I raised the possibility that the case was wrongly decided in giving such weight to an exculpatory clause, suggesting that this result would detract from a defendant's incentive to act "reasonably"; I further noted that the state legislature apparently "agreed" with me, as it subsequently passed a statute providing that agreements exempting, among others, the owner of a pool or gym from that owner's negligence were void if the owner was compensated for the facility's use.¹⁷

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I immediately noticed a student to my left shaking her head and whispering to her classmate in an urgent manner. I turned to that student and suggested that she seemed disturbed by either the case holding or my attempt to criticize it. The student seemed to hesitate for a brief moment, and then she launched into a diatribe against persons who would sue for an injury at a recreational facility after signing a contract limiting their right to do so. In doing so, she emphasized the "recreational," not the compensatory, nature of the act. I was taken aback, as this was a "quiet" student, one whose responses throughout the semester had been brief and unemotional. I then asked why she was so troubled by the fact that the injury was in a recreational setting. At this mention, the floodgates of personal experience opened wide. She related that for years she had been (and still was) an aerobics instructor, how a gym that employed her had been sued when an aerobics participant slipped on some liquid coming off a "step" during a particular exercise, and how the gym had settled even though it too had an exculpatory clause in its contract. She went on to stress that contracts should be relied upon and how "victims" should not turn to others for recompense in such situations.

This student's discussion led to animated dialogue among the students, as others recounted similar experiences...