The development of legal reasoning skills in law students: An empirical study

Journal of Legal Education

Volumn 56, Issue 3, 2006, Pages 332-355

  Krieger, Stefan H ^a,b  

^a Department of Law ^*

^b HOFSTRA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 35348918273     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (67)

1. The study was conducted in consultation with educational psychologist Vimla L. Patel and one of her associates, David Kaufman. It extended her studies on the development of skills of medical students. Vimla L. Patel et al., Differences Between Medical Students and Doctors in Memory for Clinical Cases, 20 Med. Educ. 3 (1986).
2. See, e.g., David R. Kaufman and Vimla L. Patel, The Nature of Expertise in the Clinical Interview: Interactive Medical Problem Solving, in Proceedings of the Tenth Annual Conference of the Cognitive Science Society 461 (Hillsdale, N.J., 1988);
3. Vimla L. Patel, David R. Kaufman, and José E Arocha, Conceptual Change in the Biomedical and Health Sciences Domain, in Advances in Instructional Psychology (Robert Glasscr ed., Mahwah, N.J., 2000)
4. [hereinafter Patel et al., Conceptual Change];
5. Vimla L. Patel, José F. Arocha, and David R. Kaufman, Expertise and Tacit Knowledge in Medicine, in Tacit Knowledge in Professional Practice 75 (Robert H. Sternberg and Joseph A. Horvath eds., Mahwah, N.J., 1999)
6. [hereinafter Patel et al., Expertise and Tacit Knowledge];
7. Vimla L. Patel and David R. Kaufman, Clinical Reasoning and Biomedical Knowledge; Implications for Teaching, in Clinical Reasoning in the Health Professions 117 (Joy Higgs and Mark Jones eds., Oxford, 1995);
8. Vimla L. Patel and Guy J. Groen, The General and Specific Nature of Medical Expertise: A Critical Look, in Toward A General Theory of Expertise 93 (K. Anders Ericsson and Jacqui Smith eds., Cambridge, 1991);
9. José E Arocha and Vimla L. Patel, Novice Diagnostic Reasoning in Medicine: Accounting for Evidence, 4 J. Learning Sci. 355 (1995);
10. Henry P. A. Boshuizcn and Henk G. Schmidt, On the Role of Biomedical Knowledge in Clinical Reasoning by Experts, Intermediates and Novices, 16 Cognitive Sci. 153 (1992);
11. Vimla L. Patel, Guy J. Groen, and Geoffrey R. Norman, Reasoning and Instruction in Medical Curricula, 10 Cognition & Instruction 335 (1993);
12. Vimla L. Patel and Guy J. Groen, Developmental Accounts of the Transition from Medical Student to Doctor: Some Problems and Suggestions, 25 Med. Educ. 527 (1991);
13. Vimla L. Patel, Guy J. Groen, and Geoffrey R. Norman, Effects of Conventional and Problem-Based Medical Curricula on Problem Solving, 66 Acad. Med. 380 (1991)
14. [hereinafter Patel et al., Effects of Conventional and Problem-Based Curricula];
15. Vimla L. Patel, GuyJ. Groen, and José F. Arocha, Medical Expertise as a Function of Task Difficulty, 18 Memory and Cognition 394 (1990).
16. See generally Stefan H. Krieger, Domain Knowledge and the Teaching of Creative Legal Problem Solving, 11 Clinical L. Rev. 149, 153-54, 178-85 (2004).
17. See generally Krieger, Domain Knowledge, supra note 2, at 153-54, 178-85.
18. The problem administered to the subjects in this study, the transcripts of the subjects' answers (the data collected), the protocols developed to measure the data, and the analysis conducted are posted on The Student Legal Reasoning Survey website, available at 〈http://www.studentlegalreasoning. info〉 (last visited Sept. 16, 2006).
19. Patel et al., Expertise and Tacit Knowledge in Medicine, supra note 2, at 80. "Domain knowledge" is the explicit knowledge of the concepts, principles, and structures of thinking about the particular domain in which a problem arises. Id. at 77-78.
20. See generally Krieger, Domain Knowledge, supra note 2, at 149, 153.
21. See Ed O'Donnell, Use of Forward Versus Backward Reasoning During Audit Analytical Procedures: Evidence from a Computerized-Process-Tracing Field Study, 44 Acct. & Fin. 75, 76 (2004).
22. Mark P. Higgins and Mary P. Tully, Hospital Doctors and Their Schemas About Appropriate Prescribing, 39 Med. Educ. 184, 186 (2005).
23. Patel et al., Effects of Conventional and Problem-Based Medical Curricula, supra note 2, at 382.
24. For an illustration of the differences between forward and backward reasoning in the field of financial auditing, see O'Donnell, Use of Forward Versus Backward Reasoning, supra note 6, at 86.
25. Researchers have found, however, that experts need to resort to backward-directed reasoning when they face difficult and factually unfamiliar problems. Faced with such problems, forward reasoning is not helpful because the situation is unlike previous cases, and experts must engage in developing and testing different hypotheses. Patel et al., Conceptual Change, supra note 2, at 329, 387.
26. See Higgins and Tully, Hospital Doctors, supra note 7, at 185.
27. Id.
28. Vimla L. Patel et al., Biomedical Knowledge in Explanations of Clinical Problems by Medical Students, 22 Med. Educ. 398 (1988);
29. Vimla L. Patel et al., Reasoning Strategies and Use of Biomedical Knowledge by Students, 24 Med. Educ. 129 (1990).
30. See supra notes 8-10 and accompanying text.
31. The study was modeled on Patel, Differences Between Medical Students and Doctors, supra note 1;
32. Patel et al., Biomedical Knowledge in Explanations of Clinical Problems, supra note 12, at 398;
33. Patel et al., Reasoning Strategies and Use of Biomedical Knowledge, supra note 12, at 129.
34. These questions were suggested by studies cited in notes 1, 2, 12.
35. Copies of the solicitation memos are available at 〈http://www. studentlegalreasoning.info/memos.html〉 (last visited Sept. 16, 2006). Hofstra's Institutional Review Board found that this study was exempt from its rules governing humans as research subjects because it concerned educational testing.
36. Richard K. Neumann, Jr. and Stefan II. Kricger, Empirical Inquiry Twenty Years after the Lawyering Process, 10 Clinical L. Rev. 349, 353 (2003).
37. 326 Ill. App. 3d 642, 762 N.E.2d 1(2001). A copy of the problem is contained in Appendix "A."
38. In most circumstances, a reasonable person standard is used for determining the justifiable reliance element for a misrepresentation claim. See Restatement (Second) of Torts §538 (a) (a).
39. A waiver of warranties usually does not provide a defense to a claim for fraudulent misrepresentation. See, e.g., Gable v. Boles, 718 So.2d 68, 72 (Ala. 1998);
40. Wagner v. Rao, 180 Ariz. 486, 885 P.2d 174, 177 (Ariz. 1994); Godwin Aircraft, Inc. v. Houston, 851 S.W.2d 816, 822 (Tenn. 1993);
41. Reilly v. Mosley, 301 S.E.2d 649, 651 (Ga. 1983).
42. Given the small sample size of two, the purpose of the test run was only to determine if any major defects existed in the drafting of the problem, not to determine the "expert" answer.
43. A number of states have statutes with such attorneys' fees provisions. See, e.g., Mont. Code Ann. §30-14-133(3); Ohio Rev. Code Ann. §1345.09(0(2); Idaho Code §48-608(4).
44. For a complete description of the theory underlying this methodology, see Vimla L. Patel et al., Diagnostic Reasoning and Medical Expertise, 31 Psychol. Learning & Motivation 187, 194-95 0994).
45. Researchers have found that if subjects are asked to recall their reasoning process after a long delay, the completeness and accuracy of recall is impaired, and subjects are prone to infer their thoughts as opposed to correctly recall them from memory. K. Anders Ericsson, Protocol Analysis, in A Companion to Cognitive Science 425, 429, 430 (William Bechtel and George Graham eds., Maiden, Mass., 1998).
46. Patel et al., Diagnostic Reasoning and Medical Expertise, supra note 23, at 194-95.
47. Id.
48. A copy of the protocol is included in the material for this study's website, available at 〈http://www.studentlegalreasoning.info/script. html〉 (last visited Sept. 16, 2006).
49. Copies of the transcripts are available at 〈http://www. studentlegalreasoning.info/group1.pdf〉, 〈http://www. studentlegalreasoning.info/group2.pdf〉, and 〈http://www. studentlegalreasoning.info/group3.pdf〉 (last visited on Sept. 16, 2006).
50. Patel et al., Differences Between Medical Students and Doctors, supra note 1, at 5. For a full description of the theories underlying propositional analysis technique and the empirical research supporting it,
51. see Walter Kintsch, The Representation of Meaning in Memory (Hillsdale, N.J., 1974);
52. Carl H. Frederiksen, Representing Logical and Semantic Structure of Knowledge Acquired from Discourse, 7 Cognitive Psychol. 371 (1975).
53. Patel et al., Differences Between Medical Students and Doctors, supra note 1, at 3-4.
54. Patel et al., Biomedical Knowledge in Explanations of Clinical Problems, supra note 12, at 3-4.
55. Specific descriptions of these protocols will be provided in the following section.
56. The protocol used for the fact recitation coding is posted on the study's website available at 〈http://www.studentlegalreasoning.info/protocol. html〉 (last visited Sept. 16, 2006). In one of the Group 1 (first-year student) interviews the protocol was not followed precisely. The research assistant failed to retrieve the problem after the subject (Subject 3) read it and allowed the subject to give a summary of the facts of the case with the problem in hand. To address that problem, we coded that subject's recital of facts focusing solely on his/her identification of facts in the answer to the problem.
57. A chart reflecting those codings is available at 〈http://www. studentlegalreasoning.info/factid.html〉 (last visited on Sept. 16, 2006).
58. This analysis is available at 〈http://www.studentlegalreasoning. info/relevancy.html〉 (last visited Sept. 16, 2006). We did not use the responses of the test run expert practitioners, supra note 21 and accompanying text, for this scoring because of the small sample size. A significant correlation existed, however, between the facts identified by those experts and those set forth in the Miller decision.36. These facts were: (1) Warren told [plaintiff] that the car was "executive driven"; (2) [plaintiff] found out the previous owner was an automobile rental company; (3) [plaintiff] relied on the statement that the car was "executive driven"; (4) plaintiff wants any damages to which he is entitled; and (5) your state has no statute that applied to the situation.
59. In determining relevance, we did not consider possible affirmative defenses to the claim. The question in the problem asked whether the plaintiff had any viable legal claim for damages, not whether he would eventually prevail. Like the Miller court, we used a summary judgment standard and focused only on the facts necessary to establish a prima facie case of common law fraud.
60. One first-year student recalled that Samos "eventually decided on buying a car which he believed to be executive driven." Another first-year student recollected that the dealer told him that the car "was previously owned by, a, um, executive, some sort of executive ownership." A third recalled that "the paperwork said it was a used car and that it is...was executive driven."
61. Patel et al., Biomedical Knowledge in Explanations of Clinical Problems, supra note 12, at 405.
62. See David A. Binder and Paul Bergman, Fact Investigation: From Hypothesis to Proof 82 (St. Paul, Minn., 1984).
63. A chart reflecting the rules identified by each subject is available at 〈http://www.studentlegalreasoning.info/ruleid.html〉 (last visited Sept, 16, 2006). Since a number of subjects began to answer the question raised in the problem during their fact recital, we did not limit our analysis of rule identification to the "Answer" stage of the interview.
64. Williams, 326 Ill. App. 3d at 648, 762 N.E.2d at 7. While this definition is very narrow, and it can be argued that experienced lawyers might be able to identify other possible causes of action for Samos from the facts in the problem, the most relevant common law claim from these facts is one for fraudulent misrepresentation. Our goal here was to examine the subjects' ability to identify rules concerning the most relevant cause of action, not possible rules applicable to some less relevant hypothetical claim. Accordingly, by scoring a rule as irrelevant, we intended only to note that it was not applicable to a claim for fraudulent misrepresentation. As with the relevancy scoring for the fact recital, in determining rule relevancy, we did not consider possible affirmative defenses to the claim since the question in the problem asked whether the plaintiff had any viable legal claim for damages, not whether he would eventually prevail.
65. Patel and Groen, The General and Specific Nature of Medical Expertise, supra note 2, at 532.
66. See generally Mark N. Aaronson and Stefan H. Krieger, Teaching Problem-Solving Lawyering: An Exchange of Ideas, 11 Clinical L. Rev. 485 (2005).
67. See supra notes 6-10 and accompanying text.