Failure to Communicate

It’s a damn miracle that people on your planet ever understand each other.

My good friend, Charlie Irvine, who mediates and teaches in Glasgow, Scotland, wrote an amusing and/or horrifying blog post about students’ statements in law school exam answers.

(Charlie blogs on the Kluwer Mediation Blog, which has some very thoughtful contributors. I saw this post by way of

Here’s a taste of students’ statements in Charlie’s post. A definition of mediation: “A negotiation between two or more ill-advised parties.”

Especially if you are a teacher – but even if you are not – you will get a hoot out of the other statements from his exams.

I suspect that most of us who teach could tell tales of similar statements in exams and papers that our students have submitted.

My most vivid one is when students refer to MLATNA (most likely alternative to a negotiated agreement) as “Mylanta” (an antacid medicine).

Having experienced this response in past exams, when I discussed MLATNA in class, I emphasized that it is not Mylanta, which invariably got students’ attention and sparked laughter.  But I still regularly got a few students who used the wrong term.

(To be fair, it’s not just students.  A substantial number of our colleagues responded to my call for syllabi without including publication agreements despite highlighting of that request.)

Although some of my students come up with doozies, more often they write – and this is the technical term – mush.  Such students appear to have paid attention occasionally and have a hazy understanding, but often there’s not much there there.

I get excited when I read exams demonstrating that, in fact, some students actually were paying attention and can discuss the ideas intelligently.

A Wee Bit of Jiggery-Pokery

Charlie wrote, “As the teacher, of course, responsibility for any haziness with the facts must be entirely mine.”

No offense, Charlie, but that’s a bunch of hooey, or in Scottish, that’s a wee bit of jiggery-pokery (as that famous Scot, Antonin Scalia, always says) and your bum’s out the window.

It cannot be all your responsibility – or that of any other teacher.

What we’ve got here is a failure to communicate.

Of course, teachers have a responsibility to be as clear as they can, but students bear responsibility for some misunderstandings.  Effective communication requires effort by listeners as well as speakers.

For example, when students are diddling their laptops, checking their Facebook pages or whatever, you could be the clearest and most engaging teacher in the world and they still would not “get it.”

I suspect that much of the problem is that the norms of legal education, at least in the US, discourage many students from paying much attention to anything that they think won’t be on the exam.

I think that this is probably true for most courses and especially for DR courses, which some students discount as merely teaching “common sense” in “easy” courses that give good grades.

This is part of a law school culture in which many students think it is rational to try to get the best possible grades with the least amount of work.

Exhibit A is an email from a student who asked why he got a lousy grade in my Lawyering course.  After I responded, he wrote, “Perhaps I should have studied.  I was advised by multiple 2L’s not to.”

Of course, that’s not true for all students.  Probably every teacher can think of some of their students who were sincerely interested and worked really hard.  I wish I had more of these students.

I have some sympathy for law students who have to operate in an environment in which they endure unpleasant Socratic questioning in some classes, often are graded solely based on a final exam, and whose career opportunities may be profoundly affected by their GPAs.

Although this environment understandably can breed cynicism, it seems odd that so many students don’t work harder, especially considering all the time and money they invest in law school – and that it could actually help their job prospects.

It’s really hard to change a deeply entrenched culture. I think it normally takes a sustained effort over a long period of time by a lot of people.

Anyway, buck up, Charlie. It’s not all your fault.

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