Using practice problems to learn law – differences between novices and experts

Since I began working with law students in 2009, there have been three bedrock truths of what it takes to succeed academically in law school that I hear from students and colleagues over and over.

First, you have to read stuff (although there are significant differences in opinion as to what you have to read). Second, you have to synthesize, i.e., convert information into knowledge (colloquially, the phrase outline is what is used by most people, but upon further questioning, almost everybody means synthesize). And finally, you have to do practice problems. However, what people mean when they say “do practice problems” varies nearly as much as the opinions about what you have to read to succeed.

Here’s my sense of how some of the common meanings behind the phrase “do practice problems” track according to the depth and expertise with which one uses practice problems to improve knowledge, acquire skills, and hone performance. The headings I’m using to structure my observations are borrowed from either the Benner novice-to-expert continuum or the Dreyfus model of skill acquisition.

Novice

In this first phase of using practice problems for learning, students line up materials to practice with and then read the problems to get “a sense of” what a test will be like. This is one of the actions performed under the umbrella of “doing practice problems.” However, while it is important to learn the structures and conventions of law school exams, reading practice problems to get “a sense of” is a context-based strategy rather than recall-based self-testing.

If a sample answer or rubric is available, the novice will also read over it and tend to mistake concept recognition for recall fluency.

Advanced Beginner

The advanced beginner will line up materials and read to “spot issues.” This is merely the first step in solving problems though. Granted, it is a crucial one, and students who don’t spot ENOUGH issues won’t fare well grade-wise. But, it is merely a pre-condition to success and not the thing itself that leads to success on law school exams.

If a sample answer or rubric is available, the advanced beginner will also read over it and tend to score based on the percentage of issues spotted without the contextual weighting for the different point allocations across issues. For example, generally, in a Torts exam, a clear-cut, slam-dunk battery claim is not going to be worth as many points as a claim requiring analysis of the elements for false imprisonment and analysis of the affirmative defense of the shopkeeper’s privilege. Generally, a battery claim is a single rule with three requirements to satisfy. And a false imprisonment claim has its three or four elements, but in the context of a business’s loss prevention efforts, a defendant can say, “yeah, but I was allowed to do that because…”

Competent

The next phase involves actively reading the problems and trying to solve them. At this phase, a learner may feel good about how “easily” they can generate thoughts that help them move from the problem to an answer. A learner may also feel poorly about how difficult it is to generate thoughts that help move from problem to answer. Some of these competent practice problem users take the step of writing down their thoughts or discussing the problem with some peers. This is useful work in that the individual is attempting to recall information from the course and use it to generate a solution to a problem. If the individual is also writing it down, that is useful practice in the skills for speed drafting.

If a sample answer or rubric is available, the competent user will casually compare recalled thoughts, or draft, with the model and call it good or bad. Part of working through the levels before one becomes an expert is to be susceptible to several cognitive biases, such as the illusion of explanatory depth or the Dunning-Kruger effect. Of course, once you reach expertise, you’re still susceptible to cognitive biases; they just operate in different ways and influence your work in different places.

Proficient

Proficiency in using practice problems is when an individual begins using practice materials in congruence with exam conditions and then generating improvement-driving feedback from the results. So, if an exam is closed-book and timed, then an individual will take a practice test under closed-book timed conditions. If it is open and untimed, then the individual will take a practice test open book. The key feature that distinguishes the competent skill level from the novice or the advanced beginner is generating improvement-driving feedback.

Generating improvement-driving feedback could include, among other things:

  • If a sample answer or rubric is available, the individual could catalog both the practice attempt’s issues into a list and the attempted answers into a list and compare. After observing whether the differences skew towards not spotting the issues in the rubric, spotting too many issues according to the rubric, or some combination thereof, the individual can set up drills to improve issue-spotting ability, or improve focus to the universe of “fair” information for the class.
  • The individual can also color code their answer sentence-by-sentence to see how well it uses the different building blocks of legal analysis and layers them together for and ordered presentation of information and analysis.
  • The individual may highlight the facts that appear in both the problem and the answer to see how well the problem facts are incorporated and used in the answer. Generally speaking, most problem facts are salient to the analysis of the problem and should be used with some combination of direct quotation or close paraphrase.

Expert

Expertise in using practice problems is attained when individuals adopt a variety of strategies to extract as much learning benefit from practice problems as possible. Given that there are different degrees of practice, an intentional and expert approach to using practice problems also recognizes different of types of practice. These different types of practice can be used to support the different stages of learning that build to integration of knowledge into long term memory. An expert user of practice problems is likely to have a couple of study aids that can be used on a daily or weekly basis, a couple others that can be used at the end of a unit or on a monthly basis, and then practice problems provided by a professor for the pre-summative practice immediately before the final exams.

Building in daily or weekly practice requires a couple of skills and a couple of specific types of study aids. The skills required are 1) using a book index to find targeted information, and 2) extracting main ideas from reading assignments and class lectures to know what terms to look for in the index. A couple of examples of the study aids that are especially suited to this phase of practice are the Examples and Explanations series (short answer and short essay prompts) as well as the Glannon Guides (multiple-choice style questions with explanatory answers), the Exam Pro (Objective) titles, or the Questions & Answers Series. Expert users will read the material and then turn to practice questions to test immediate understanding and ability to apply material. This practice will tend to focus on the varied applications of a single rule.

At the end of a unit, expert learners will turn to sources that can help them vary and interleave their practice. So instead of two or three short problems or multiple-choice questions devoted entirely to battery, a learner will try to work through all of the intentional torts, or a full-scope negligence problem. Some of the study aids that can support this level of practice include the Exam Pro (Essay) titles, Siegel’s or Friedman’s, or for the first year curriculum, The Perfect Practice Exam.

The last layer of practice is to use any past exams a professor may have released to gain insight into the professor’s approach in testing the subject matter. Some professors enjoy a long fact pattern with a “spot all issues.” Others prefer to do a series of segmented essays. Reviewing the past materials provided allows an expert user to test their own mastery of the course material as well as gain valuable, and now actionable, insight into the preference of the person who will be grading their final exam.

Acknowledgement

Special thanks to DeLeith Gossett for beta reading this post. Any errors that remain are entirely mine.

The conceptual foundations for this post came from the many works on expertise and deliberate practice I’ve read from scholars such as K. Anders Ericsson and others. Also the work done by Michael Hunter Schwartz & Paula Manning to make the habits of expert learners visible to new law students.