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Wednesday, September 3, 2014

Law School Stress and the Benefits of Cautionary Tales: A Response to Patthoff

From the Legal Theory Blog, I learned about Abigail Patthoff's forthcoming articleThis is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students (Utah L. Rev. 2015). Here is the abstract (from the document itself, not the SSRN abstract):
Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate student populations. As their teachers, law professors cannot ignore the palpable presence of this stress in our classrooms – unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness. Yet, in the name of persuasion, professors frequently, and perhaps unwittingly, introduce additional fear into the classroom as a pedagogical tool via a common fear-based narrative: the cautionary tale.

By taking lessons from existing social science research about “fear appeals” – scare tactics designed to frighten the listener into adopting a particular behavior – this article suggests that we can actively manage one source of law student anxiety by more thoughtfully using cautionary tales.
There is a lot in the article that I find agreeable. Patthoff correctly points out that law students are extremely stressed, and notes that something should be done about this, which is an attitude I certainly share. Patthoff also includes a great deal of information about "fear appeals," the limits of this teaching technique, and how it can increase stress. I don't have the expertise to judge whether Patthoff's characterization of the psychological literature is correct. I will therefore grant that there are limits to the effectiveness of fear appeals and that fear appeals can have a detrimental effect on law students.

Despite Patthoff's agreeable premises that law students are stressed, that this stress should be minimized, and that fear appeals can cause stress, her argument is incomplete. Patthoff equates cautionary tales with fear appeals -- a comparison that is highly questionable. Patthoff also overlooks several important functions that cautionary tales can serve, which include the function of reducing student anxiety in the law school classroom. In light of these issues, I conclude that Patthoff is too quick to criticize cautionary tales.

In order for Patthoff's critique of cautionary tales to be complete, she needs to successfully show that cautionary tales are fear appeals. Patthoff has some extensive discussion of how cautionary tales are stories meant to warn the listener. She provides some examples of legal cautionary tales, ranging from how a misplaced comma led to millions in losses, how an offensive email to several law students was posted to Above the Law, and how failing to proofread a brief led to a lawyer's autocorrect changing every instance of "sua sponte" to "sea sponge."

While Patthoff devotes extensive discussion to the concept of warnings, her linking of cautionary tales to the concept of fear appeals takes place in a fairly brief passage on pages 11-12:

Despite these benefits, law professors have reason to be careful about using cautionary tales in the classroom.61 Cautionary tales belong to a genre of persuasion known as “fear appeals.” Fear appeals are messages designed to motivate the listener by instilling fear. As stories go, cautionary tales are tragedies. Unlike conventional narratives, which feature a protagonist’s struggle and ultimate resolution of that struggle, in a cautionary tale the protagonist does not prevail. These protagonists are attorneys with whom our students are supposed to identify. Thus, the primary emotion that cautionary tales are intended to arouse in a student is fear of failure.
The paragraph provides one footnote (shown in the quote by the number 61), where Patthoff cites this earlier article in which she asserts that cautionary tales are fear appeals.

Patthoff is too quick to conclude that cautionary tales are intended to arouse a "fear of failure" in students. While students may be stressed and afraid in law school classes, their fear typically arises from the prospect of being called on and destroyed in front of other classmates or failing an exam -- not the fear of making a mistake in some future practice scenario. Law school is indeed scary, but not because of cautionary tales.

Moreover, it is not at all clear that cautionary tales are intended to cause fear rather than serve one of many other potential roles. Patthoff acknowledges that cautionary tales can give theoretical lessons a practical hook and that they can make professors seem more credible if the story is drawn from the professor's own experience. She also mentions that cautionary tales can break up the rhythm of a lecture, which may facilitate learning.

All of these are sensible purposes for the cautionary tale that are unrelated to any intent to frighten students. But these purposes that Patthoff acknowledges still don't do justice to the technique. The cautionary tale can warn students of common mistakes, humanize the professor, and reduce student anxiety through humor.

The most potentially frightening type of cautionary tale would be one about a mistake a student could make that would result in a poor grade. While students would feel a close, potentially fear-invoking connection to this story, this will arguably be less likely if the mistake is simple, and something that students are likely to avoid if they keep it in mind. Moreover, if a cautionary tale involves an easy-to-avoid mistake, students may perceive that a task is less daunting, since the tragic outcome of the tale can be avoided by the easy measure of avoiding the simple mistake.

Patthoff notes that cautionary tales drawn from a professor's own experience can give the professor credibility. But a professor who tells a cautionary tale in which he or she is the victim could have an even more profound impact on students. By admitting fallibility, professors can show that they are human, and students may find the professor more approachable. This can make the classroom environment less intimidating and less stressful. Moreover, the cautionary tale implies that improvement is possible -- after all, the professor managed to go from making this mistake to holding a teaching position. Any risk of losing credibility is probably minor when compared to the depth of experience and approachability that the occasional, self-deprecating cautionary tale can convey.

Finally, a cautionary tale could play the role of lightening the mood of a lesson by illustrating a humorous case of an attorney's failure. Patthoff makes a quizzical remark in footnote 188 that students who laugh at a cautionary tale are "unlikely to be motivated by it." But students need not be motivated by a cautionary tale for it to have a positive impact. A cautionary tale that illustrates a remarkable failure to follow the rules and the ensuing consequences serves partially to illustrate the consequences of the rules. But the main appeal of the cautionary tale is the levity that it can bring to an otherwise serious or dull discussion of law. Moreover, by introducing humor to the lesson, professors can work to counteract the stress that permeates the law school environment -- an important goal that Patthoff recognizes throughout her article.

Law school can be a frightening place. But law students' fear is the product of pressures and concerns far larger than the occasional cautionary tale. And since the cautionary tale, if used properly, may be used to effectively combat this fear, Patthoff is far too hasty to caution against the use of this teaching method.

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