A strange thing seems to be happening in most law firms’ lawyer training sessions. At one end is a lecturer; at the other, listeners and note-takers. Often the lecture is enhanced with handouts, PowerPoint slides, charts, bells and whistles. The lecturer, often among the best and brightest, has expended substantial time and effort. Those attending have taken substantial time away from their practices. The content of the lecture represents the state of the art. At the end of the lecture, the attendees give the day high marks. All get their CLE credits. Everyone leaves feeling good.

Only one thing is wrong. By the next day little is remembered, the following day even less. In spite of the effort and the unquestioned intelligence of those attempting to learn, there is little retained. Research tells us 10-15% retention would be optimistic.

The problem? We are using a training technique shown to be inadequate. But we retain it because that is what we know. Instead, I believe an old proverb applies, “Tell me, I forget; show me, I remember; involve me, I understand.”

In his classic book, The Adult Learner: A Neglected Species, Malcolm Knowles identified the problem and the solution. Within a few years, the term “Adult Learning Theory” became common in training and continuing education circles throughout the country. Everywhere, it seems, except with lawyers.

We lawyers occasionally see adult learning techniques. NITA has been using them for years. Some negotiation and a few writing instructors have as well. But for reasons not entirely clear, they haven’t caught on well with other lawyers’ programs (including some taught, I’m sorry to say, by me in my benighted youth). So, with the zeal of a convert, let me discuss andragogy (a.k.a., adult learning theory), its basics, how it applies to lawyer professional development, and give you one tool you can use tomorrow. In upcoming issues, we’ll discuss more of adult learning and how to make it work for fun and profit.

All of us know pedagogy, even if not by name, for it is our school and college experience. Having the instructor develop and deliver a subject-matter based course is what we know and what we expect. As a result, lecture is the default setting for our training.

In the 1960s and 1970s several people, principally Malcolm Knowles, suggested this picture needed changing. They proposed replacing “pedagogy” (the study of teaching children) with “andragogy” (the study of teaching adults). Comparing the two:

Topic - Need to know
Pedagogy - Defined by teacher, especially need for grades and passing.
Andragogy - Defined by learner’s three questions: Why do I need this, what is taught, how is it taught?

Topic - Learner’s self-concept
Pedagogy - Dependent upon teacher
Andragogy - Self-directed; the learner is in charge.

Topic - Role of learner’s experience
Pedagogy - Disregarded.
Andragogy - Expected and treated as resource for teaching one another; sometimes a challenge to overcome.

Topic - Readiness to learn
Determined by calendar and teacher.
Andragogy - Self-perceived need to know.

Topic - Orientation to learning
Pedagogy - Acquiring subject-matter content to pass tests.
Andragogy - Task- or problem-centered; subject matter seen as a tool.

Topic - Motivation
Pedagogy - External: Grades, teacher and parent approval and pressure.
Andragogy - Internal (e.g., job needs, competence, confidence).

(Drawn from Knowles, Holton and Swanson, The Adult Learner (5 Ed., 1998), pp. 61-69, and passim.)

As one can see, adults don’t want general education. They want specific training. They don’t want nice-to-know information; they want need-to-know answers. They don’t want a teacher in charge of their development. They want to be in charge. Stated simply, it’s a change from teacher-centered to learner-centered learning.

What that means to us in professional development is a change in how we approach our jobs. In future articles, I hope to persuade you to change how we design and deliver our development programs. Until then, here’s one tool any of us can use in tomorrow’s training program. Many of us have tried tests to measure training effectiveness, with mixed success. Instead, I have had good luck with pre- and post-tests, not as a measurement but as a learning tool. As mentioned above, adults are motivated to learn when they see a need and when they know what they’re going to learn. By using a series of questions reflecting real-world situations, most lawyers see the relevance to their own law practice. By previewing the material, the questions answer both the what and why they are learning it. A well-phrased question can also point up what the lawyers don’t know, or where their grasp is tenuous.

The following test question set is taken from a course I developed on the Federal Rules of Civil Procedure and Federal Rules of Evidence, as amended in 2001. If you are teaching or plan to teach a course on the subject, feel free to use it.  

Federal Rules of Evidence

1. If a motion in limine is denied--holding certain evidence admissible--the proponent must renew the motion to preserve the record on appeal.
   Pre-Test:    T    F
   Pos-Test:    T    F
   
2. If a motion in limine is sustained–barring admission of evidence--the proponent must make an offer of proof to preserve the record on appeal.
   Pre-Test:    T    F
   Pos-Test:    T    F
   
3. A magistrate judge’s ruling on in limine motion is preserved on appeal from a district judge trial, so long as magistrate’s ruling is “definitive.”
   Pre-Test:    T    F
   Pos-Test:    T    F
   
4. A fact witness, such as a police officer, whose testimony involves some expert testimony (observed drug transaction),may testify even though not designated as an expert.
   Pre-Test:    T    F
   Pos-Test:    T    F
   
5. Daubert applies to scientific and engineering expert witnesses, but probably no other form of expert testimony.
   Pre-Test:    T    F
   Pos-Test:    T    F
6. The trial judge has the power to exclude expert evidence on the basis of a factual finding of unreliable use of otherwise proper methodology used by the witness.
   Pre-Test:    T    F
   Pos-Test:    T    F
7. The new rules 702 & 703 have applied Daubert to the point of depriving a jury trial on many issues.
   Pre-Test:    T    F
   Pos-Test:    T    F
8. An expert can recite the basis of opinion, including hearsay, subject to a probative-v.-prejudicial balancing test.
   Pre-Test:    T    F
   Pos-Test:    T    F
9. Foundation testimony at trial from a custodian of business records must be in person, unless stipulated to the contrary.
   Pre-Test:    T    F
   Pos-Test:    T    F
10. A treating physician must prepare an expert report and Daubert applies, if testimony includes recounting the doctor’s examination and causation recorded in the medical chart, even if the physician offers no opinion bearing on prognosis.
    Pre-Test:    T    F
    Pos-Test:    T    F
11. Scientific or medical testimony that is recounting an opinion of a person whose duties include rendering such opinions in the ordinary course of business, is not subject to expert disclosure and Daubert rules.
    Pre-Test:    T    F
    Pos-Test:    T    F
12. Lay opinions, even though admissible under California Evidence Code, are no longer admissible under FRE.
    Pre-Test:    T    F
    Pos-Test:    T    F
13. A witness, such as a maintenance worker, who will testify on standard practices within a company and whether those standards were met, is not an expert witness.
    Pre-Test:    T    F
    Pos-Test:    T    F
14. A properly drafted FRCP 26 expert designation will be sufficient to defeat a rule 702 objection at trial.
    Pre-Test:    T    F
    Pos-Test:    T    F
15. One may circumvent FRCP 26 and FRE 701-703 restrictions on experts by not retaining the expert, but instead by subpoena, such as with a hostile but expert witness.
    Pre-Test:    T    F
    Pos-Test:    T    F

Four more tips:

1. not have the tests turned in; they are for the lawyers to have in front of them.
2. They must be quick. Five minutes is pushing it.
3. Draft the questions so those depending upon conventional wisdom or upon outdated knowledge will get them wrong. They will then see the palpable benefits of the class.
4. Because you will not reveal the answers until the post-test cycle, aim for a disproportionate number of true or false. When you announce at the beginning that, say, the right answers were twelve false and three true, it will catch their attention.

Research tells us using adult learning principles can increase retention to above 70%, sometimes pushing 90%. Even fairly straightforward tools can enhance learning. The challenges are to use the right tools, apply them in a cost- and time-effective manner, and deal with resistance from those expecting the old style. Passively sitting and listening to a lecture is non-threatening. Adult learning principles are the antithesis: they are hardly passive, and they invite, if not require, involvement, something some will find uncomfortable.

In the next article I will address the first steps in systematically developing a program, starting with identifying goals and standards, and an old favorite, Bloom’s Taxonomy of Educational Objectives.