The Sandwich Theory

Quoth Papa Greenfield:

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching.…

This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when  you are giving a correction to someone you’re supervising, sandwich the negative between positives. 

It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?

Greenfield seems to think it’s an obstacle:

The directions to say something positive first, offer “constructive” criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

I am unconvinced.

Teaching and trial lawyering have a lot in common. In trial, we tell our client’s story the way we tell it not because of some idea of the “correct” way to tell a story, nor to convince some idealized jurors, but because we think that the way we tell the story will be the most effective way to get the actual jury to agree with us.

Scott, who would never try a case as though to idealized jurors, wants to teach as though to idealized law students:

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Yes, law students can be just as fragile, entitled, and narcissistic as any kindergartener. So, for that matter, can criminal-defense lawyers, even very successful ones. But just as the trial lawyer’s job is to convince real jurors, the trial advocacy instructor’s job is to convince real students. The Sandwich Theory has become social convention because it works. It works because most human beings—not just law students—are fragile; by sandwiching constructive criticism between slices of praise, the teacher sends the message that the criticism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sandwich Theory is a teaching tool—perhaps an effective one—and if you want to teach people you’ll use whatever tools come to hand.

There’s an ongoing philosophical debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is better to provide him with the help he asks for (enabling his continued blundering, but helping his current client) or to decline to help (not helping his current client, but not encouraging the lawyer to continue punching above his weight). Should we help the accused at the cost of nurturing incompetence, or make incompetent practice difficult at the cost of the accused?

At some point those who aren’t cut out for this job need to figure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ventures (like prosecution, or bonsai gardening). This is likely to happen eventually, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sandwich Theory is the advocacy program’s rule, it is not the instructor’s role to weed out those students who aren’t going to make it.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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33 Responses to The Sandwich Theory

  1. Justin T. says:

    One of the earliest and most helpful lessons I’ve learned in the mere 2 years I’ve been in criminal defense is how to get my ass completely handed to me, be it by an angry judge, a jury, a difficult client, or a supervisor, and pick myself and continue doing what I do. You gotta learn to take criticism and defeat, and you gotta learn to take a lot of it. Lesson learned.

  2. shg says:

    Ah, but the point of the underlying study is that it doesn’t work. It’s a pop convention, sound for beginngers but a failure for higher order improvement. It fails in the workplace. It fails in the classroom.

    You may believe in it because it’s the convention you were reared in, but at what point should we expect people who are, or hope to be, entrusted with other people’s lives to get over their need for validation and learn how not to destroy people’s lives?

    While I didn’t do it in ITAP because it wasn’t up to me to make the rules, that doesn’t make it good pedagagy or acceptable to be satisfied with new lawyers ruining lives so that their feelings aren’t hurt.

    • Mark Bennett says:

      From the abstract:

      novices sought and responded to positive feedback, and experts sought and responded to negative feedback.

      Pop quiz: law students–novices or experts?

      • shg says:

        Along the spectrum of education, from kindergartener to lawyer authorized to walk into a courtroom and try a case where a human being’s freedom is at stake, a third year law student is (sadly) most assuredly far along the expert end of the scale.

        I appreciate how hard it is to think of them that way, but one isn’t a novice until hitting the polar extreme.

      • Mark Bennett says:

        Rubbish.

        Sure, a 3L is almost an expert, if you consider the spectrum of education from kindergarten to bar passage. More so if you consider the spectrum of time from the beginning of the universe to bar passage.

        But most of that time is irrelevant. The 3L is no more an expert advocate than the 1L is no more an expert advocate than the high-school graduate is no more an expert advocate than the kindergartener.

        As a rule law school, like college or high school or nursery school, does very little to prepare you to be responsible for others’ futures. The possible exception to that rule is advocacy classes, where teachers should be trying to impart expertise.

        The Finkelstein article is an exploration of whether expertise (real or perceived) influences the type of feedback people seek. Level of expertise affects feeback sought: people with more expertise seek more negative feedback. Per the NYT, “When people are just beginning a venture, they may not have much confidence, and they need encouragement.”

        If you give me positive feedback about my advocacy, I’ll swat it away. It isn’t helpful. But I am an expert, and I’m already fully committed to doing the job, and doing it better.

        The anecdote in your post shows a person who is inexpert seeking tummy rubs, which is what Finkelstein might predict and explain as the novice seeking increased commitment.

      • shg says:

        Maybe I have greater expectations of third year law students interest in learning how to practice law rather than get a nice tummy rub.

        You could be right. Maybe they’re still years away from being interest in learning rather than validation.

      • Alex Bunin says:

        Scott, I almost never criticized students without adding some form of praise. I am not sure that was always best for them. Sometimes they need your kind of tough love.

  3. Keith Lee says:

    I think the Sandwich Theory definitely has a place in large swaths of education, the proper question is: is it right for legal education?

    Since I know you’re a Krav guy, I’m going to dive into martial arts/combat sports for a bit.

    I’ve trained in martial arts for right at 16 years now. Aikido, Karate/TKD, Judo, Iaido, Sambo, BJJ, MMA. I’ve experienced an incredibly wide array of teaching methodologies in the various disciplines. The soft arts such as Aikido/Iaido very much follow the praise/critique/praise methodology – which follows the nature of those arts. They are about cultivation of idealized/perfect technique. In contrast, combat sports I have trained in have utilized the Sandwich Theory to a much lesser extent. It’s not that praise didn’t exist, just that it was very slim. More than likely, you are going to hear a coach telling you: “That was fucking garbage, are you really even trying!?!” (side note: Sambo gyms are the least praise centric gyms I’ve ever been in)

    I’ve chalked it up to traditional “do” arts being centered around character development and expression, while combat sports are largely concerned with real world effectiveness in adversarial situations.

    To extend the analogy to the practice of law:

    1) One law student is the product of Sandwich Theory & one who has had to have their ass handed to them on a regular basis in the Socratic method (“school of hard knocks”).
    2) Both pass the Bar.
    3) 3 months after Bar passage, they end up on opposite sides of a case and manage to land in front of a judge arguing a motion.
    4) All other things being even, my money is on the school of hard knocks law student coming out ahead.

    That’s not to say that the school of hard knocks is for everyone, or even the majority of people. Most people are not warriors or martial artists. But there is definitely something to be said for those who have a lineage and study of combat (physical, mental, spiritual) v. those who do not.

    You cannot have great faith without great doubt. Nor can you be a great warrior without going into battle. I’d posit that you cannot be a great advocate without being challenged as well.

    There is probably a place in legal education for Sandwich Theory, but I think that place is likely limited. You can’t hand-hold people who are going to have to be responsible for the life/liberty/property of others. They have to be able to protect themselves if they are going to protect other people.

    • Akio Katano says:

      My own experience of “hard knocks”-type gyms is that they’re good at teaching strength and endurance but poor at teaching strategy and technique. I’ve never seen poorer technique than the (brief) time I spent in a Krav Maga class, all anyone knew was how to shout and hit. Conversely, my karate senseis always made sure you knew exactly what you were doing right and exactly what you were screwing up.

      That’s hardly a matter of pampering or softness, of course – a rebuke is felt much more keenly when its meaning is understood, rather than being abstract demeaning/motivational blather.

      As much as we love to dress ourselves in the language of combat, the teachable skills of criminal defense are a matter of technique rather than warrior spirit. “That was fucking garbage” might be an accurate assessment, but it’s pedagogically useless – grit isn’t going to show you how to prepare a cross-examination.

      To develop with understanding as a beginner, one must get a sense of what one is doing right as well as what one needs to change. The former anchor one’s thoughts and practice, and contextualize the latter; maintaining those good points necessarily involves some manner of positive reinforcement. As our host pointed out, novices tend to seek positive feedback. The reason for this is that, for a beginner, positive feedback is particularly actionable: it concerns something that a person has already accomplished and therefore can keep doing. That’s important. If the good elements aren’t reinforced and understood, then they’ll inevitably waver and atrophy.

      • Mark Bennett says:

        The contrast you describe between Krav Maga and Karate makes sense: KM is designed to be useful with very little training; Karate can be much more powerful, but generally requires much more training to get there (but see Kissaki-Kai Karate, which returns to Karate’s practical roots by deconstructing forms into real-world combative elements).

        In the KM gym, there is a focus on pressure—on doing something useful when your pulse rate is 170, you are dizzy and fatigued, and threats are coming at you from all directions.

        The criminal-defense lawyer needs both sorts of skill set: simple, crude reactions to threats (to survive the initial attack and mitigate immediate danger); and technique to burn (to have the requisite variety to effectively end the confrontation).

  4. Josh C says:

    Keith,

    I think your steps 2 and 3 are begging the question.

  5. Jordan Lewis says:

    I recently read that almost all professional gamblers start with a streak of beginners luck. Everyone who gets an honest picture early on wises up and quits.

    As a relatively-new lawyer who participated in every advocacy-related activity I could do in law school, I can tell you without doubt that 3-L’s are not experts. Not even close. But the coach was gentler on us when we were new, progressing toward the more harsh criticism.

    I think the real issue is not so much whether the students are interested in more than a tummy rub, but rather whether they’ll be willing to stick around long enough to start to get the hang of it. When undertaking the very early stages of learning to do something that isn’t easy and doesn’t always come naturally, human nature calls for a bit of an easy hand from the instructor. One man’s coddling is another’s confidence building.

    One of the biggest problems with our legal system is the lack of any formal internship or mentorship before we are loosed upon the world. The fact that some of these kids will be holding another’s fate in their hands in as little as a year doesn’t make them experts. That will come with time and mistakes, often at clients’ expense. They are what they are, and at this stage, they’re much more novice than expert.

    The justification for the sandwich method isn’t so much to protect their feelings as it is to prevent them from just throwing up their hands and not learning what they need to know. And especially for law students: they tend to be a driven bunch who is used to things coming easy. The cognitive dissonance created by being told that they suck usually leads them to find different stuff to do.

    One of those kids will wind up with another man’s life in his hands, and the prosecutor says, “You don’t want the deal? Then let’s set it for trial.”

    I’ve seen a lot of lawyers who never heard anything but that their trial skills are for sh-t. They plead a lot of clients who could have been saved. The Sandwich method may feel like mollycoddling to a warrior who’s used to having it handed to him, but if it gets them to the point that they can handle some criticism that will actually make them better, so what?

    • Mark Bennett says:

      Yes: “The jus­ti­fi­ca­tion for the sand­wich method isn’t so much to pro­tect their feel­ings as it is to pre­vent them from just throw­ing up their hands and not learn­ing what they need to know.” Or, as the NYT article about the Finkelstein paper says, “When peo­ple are just begin­ning a ven­ture, they may not have much con­fi­dence, and they need encouragement.”

  6. shg says:

    This is a quandary. So if you’re correct, that 3Ls are too needy to want and accept serious critique, and need it watered down and sandwiched between coddling and validation, when are they ready? A year out? 5? 10? And when they are ready, who will be there to give it them?

    They’re out of school. They may be on their own. Who will watch them and tell them? CLEs are group events, so they don’t help. Friends won’t know any better, and won’t be inclined to be harsh if that’s called for. Maybe they’ll have a mentor, but more likely not. So who?

    And what do we say to the dead bodies they’ve left in their wake from the time they left school until the time they’ve become “expert” enough to seek real improvement? Or is this all about making the children feel good about themselves and we can’t really be bothered worrying about the clients?

  7. Josh C says:

    I am no expert on law, or on pedagogy.

    Nonetheless, it looks like everyone commenting assumes that any praise given is otherwise useless, and only designed to fluff students’ fragile egos. I can’t understand why anyone would assume that.

    A novice needs praise especially, not because of some fragile ego, but because novices have no baseline recognition of good work. The “praise” in that sandwich should be part of the criticism; it should frame the area that needs work, and help target it. By appropriately praising, you not only reinforce desired behaviors, you provide better specificity in your feedback.

    Briefly, when you as an experts seek criticism, you are reproducing past successful behaviors, and look only for what needs to change. When novices seek criticism, they have no past successful behaviors, and also need to know what needs to be kept.

    • Mark Bennett says:

      I don’t think Akio and Keith make that assumption.

    • shg says:

      I think Mark is right, and that perhaps you’re misunderstanding what is meant by the praise sandwich. The pedagogy is to always praise first and last, with soft criticism in the middle. It’s not about praising something that is necessarily praiseworthy, but finding something, making it up if necessary, so that you always open and close with praise.

      It’s a pedagogical fiction designed to soften the blow of anything that could be taken negatively, not about real praise (though that could be the case) or reinforcing good work (though that could be the case too). But if the praise is earned, then it is part of the critique and falls outside the pedagogy of the Praise Sandwich.

  8. Jordan Lewis says:

    “It’s a ped­a­gog­i­cal fic­tion designed to soften the blow of any­thing that could be taken neg­a­tively, not about real praise (though that could be the case) or rein­forc­ing good work (though that could be the case too). But if the praise is earned, then it is part of the cri­tique and falls out­side the ped­a­gogy of the Praise Sandwich.”

    I’m having trouble deciding whether we disagree or are talking about 2 different things. I don’t advocate false praise. If there was nothing praise-worthy about their effort, then perhaps walking away now is the right thing.

    I do, however, think that it’s important to let a novice know what he’s doing right at the same time that you tell him what he’s doing wrong.

    As far as what we do with them when they graduate, that’s a good question, but I think it’s a completely separate one. As I mentioned before, I think the correct answer is a mandatory internship/mentorship, along the lines of what doctors must do before they are free to practice on their own. Until we have that, I don’t know that there’s a good solution to the issue; I think it’s one of the top problems with the American legal system. As long as that persists, new lawyers will continue to screw up their clients’ cases. Hopefully they’ll learn from it, and hopefully they start where the stakes are low (i.e. misdemeanors for criminal lawyers, smaller claims for civil lawyers, etc.). [Read: The system’s fundamentally f-ed up, but it is the system in which we work.]

    I do have trouble seeing, though, that the right answer is to treat people who are actually novices (despite what is soon going to be expected of them) as though they are experts. While false praise is problematic in its own right, if you scare them off of trying to learn to be an advocate, where does THAT leave their future clients? (I have a suspicion that the answer is in the hands of a dump truck.)

    I don’t believe in sparing someone’s feelings for the sake of sparing their feelings, but the simple fact of human psychology is that in most cases, a softer touch will often be more effective. It’s not always true that you will catch more flies with honey than vinegar–sometimes you have to use vinegar–but it’s usually not a bad place to start.

    When the gloves need to come off, so be it, but that’s probably not the proper default for someone with (at the very most) 40-50 hours of experience at what you’re trying to teach them.

  9. Jordan Lewis says:

    “This is a quandary. So if you’re cor­rect, that 3Ls are too needy to want and accept seri­ous cri­tique, and need it watered down and sand­wiched between cod­dling and val­i­da­tion, when are they ready? A year out? 5? 10? And when they are ready, who will be there to give it them?”

    It is indeed a quandary. But short of instituting a mandatory internship (ala medicine), I don’t know the answer. All I can think of is to encourage young lawyers to seek out mentorship and to make ourselves available to mentor them along.

    I marveled at how unprepared I was to be a lawyer when I graduated, and I’m pretty sure I was at least marginally better prepared than the great majority of my classmates. I was lucky enough to be hired by a criminal defense firm, and so I had in-house mentorship. 5 years in, I still wouldn’t call myself an expert, but I am still learning.

    We have to explain to our clients daily the difference between how the world oughta be and how it is: That judge should grant this motion to suppress, but he won’t, because he’s worried that he’ll be seen as soft on crime; that prosecutor should recognize that this case needs to be dismissed, but she won’t, because she needs more trial credits to get promoted; that cop should get fired for lying, but he won’t, because he and his superiors think he was just doing his job.

    Well, lawyers should have to intern with an experienced attorney for 3-4 years after passing the bar before they can handle cases on their own, but they don’t have to because, well, because that’s the way it’s always been done. (Actually, I suspect that the old apprenticeship system took care of this pretty well, but wasn’t replaced when we moved to the law school model.)

    Since we live in the real world and not the ideal world, we have to accept that lawyers are loosed upon the world as though they were experts, long before they’re actually experts. They become experts by getting their hands dirty and screwing up their clients’ cases.

    The question then becomes, “How do we minimize the damage?” The answer is to teach them as much as we can while we can. If throwing some praise in along with the critique makes the learning process more effective, then do it. (Again, I am NOT advocating false praise; I think it’s counterproductive.) It’s not about their delicate feelings and treating them like the special snowflake that they are; it’s about psychology and the most effective way to impart knowledge to a fallible (and, yes, often overly-self-important) human.

    • shg says:

      As near as I can tell, you have no principled position and want all things at all times. You want to deal in the real world, but rely on apprenticeships that don’t exist. You want young lawyers who know nothing to be taught without false praise, but they should be praised anyway. If I had to guess, you’re a very conflcited young lawyer who wants to be coddled while pretending he doesn’t.

      Want to hear a really harsh truth? Many third year law students do nothing well and praiseworthy. It’s not that they aren’t nice and we don’t want to help them, but they suck at lawyering. And like you, they want praise because they’ve spent their lives being coddles and praised for everything from burping to coming in 27th in a race of 28 people. More truth? They can’t take anything remotely resembling real criticism. They have no desire to do the job well, as they can’t without being tough enough to learn. Give them a tummy rub and they are thrilled to pretend they’re ready for trial, even though they’re a walking disaster. But without validation, they cry.

      You’re right that it’s psychology, but not of the sort that applies to normal people. Check the DSM for pathological narcissism.

  10. Jordan Lewis says:

    When there’s nothing praiseworthy, no praise is necessary. If someone does just plain suck, I have no problem with telling them that. [See the PS below, but the young woman in your story presented an exceptional case where you’re right: there was no need to include praise.] But there’s a difference between no redeeming qualities and a long way to go before they’re ready for prime time.

    I don’t seek to rely on the non-existent apprenticeship program, although I do think it’d do a lot to fix the problems of lawyers way in over their heads. The reason I brought it up is that without such a program, the 3L’s you are dealing with today will be representing real people in a year, whether they’re ready for it or not. That’s the reality.

    As for myself, I do still like praise, and I’ve never pretended (or, as far as I can tell, even suggested here) otherwise. But I can see the progression that I have made from flat-out needing it in order to feel like I wasn’t wasting my time, to just liking it because I have a litigator’s ego. I am finding that the negative criticisms from jurors is often more helpful.

    I don’t disagree that the current crop of students do suffer from having been overly praised throughout their lives. I’m a little older than my 5 years of practice might suggest. Before law school, I was a college advisor, where I dealt first hand with students who’d always been told they were brilliant, despite needing remedial courses in everything or almost everything. I also dealt regularly with the greatest contributors to their lack of actual preparation: their parents. We referred to them as helicopter parents, because they always seemed to be hovering just above little Johnny.

    I don’t seek to excuse or justify it. But, in the same way that you have to present your case in a way that the jury you actually get will find compelling, you’re teaching the students you’re teaching.

    If the Praise Sandwich model really does require artificial praise, then you and I agree that it sucks. But if the issue is that you don’t like that people typically respond poorly to being shat upon, I don’t really what to tell you. I don’t like having to sugarcoat things for prosecutors, but if I think it’ll help my client to go that route, it’s my job.

    Finally, I am a conflicted young lawyer, but not for reasons relevant to anything we’ve discussed here.

    -jl

    PS–I’ve finally read yor original post about the young woman who’s now an appellate judge. That’s not a situation where I think the Praise Sandwich is appropriate. We agree on that much. (Given her attitude in that class, she seems like exactly the type of person who’d wind up on a bench.) But in general, I don’t think it’s a bad tool just because it acknowledges that people respond better to criticism when it’s softened with positive reinforcement. Just as one-size-fits-all rules sometimes make bad results in the law, it does the same for teaching. There are exceptions to everything, but as the default position, the Praise Sandwich isn’t a bad way to work with STUDENTS.

  11. Jordan says:

    “I don’t like hav­ing to sug­ar­coat things for pros­e­cu­tors,” should have read, “I don’t like being nice to people I don’t like, such as unpleasant prosecutors,”

    I don’t know whether I forgot to edit that, or if it just didn’t take the edit. (I would appreciate it if you would mix some praise into my well-deserved lambasting for poor proofreading.)

    • shg says:

      No criticism for errors in blog comments. No one’s life is at risk, so no need to take the level of care one would use in practice.

      You’re getting closer now to nailing down your position, but still a bit away from the crux of the problem.

      First, the praise part of the praise sandwich is mandatory. That’s what makes it the praise sandwich. So the point is that the teacher must praise first and last, regardless of whether there is anything praiseworthy. If you agree that empty praise is wrong, then you disagree with the praise sandwich. It’s like being Catholic, provided you don’t have to belief in Jesus. You can’t have one without the other.

      Second, the criticism in the middle must be tempered so that feelings aren’t hurt, also part of the nature of the pedagogy. So it’s not merely false praise, but less than accurate crticism. This is an opportunity cost, sacrificing actual learning for the impact on self-esteem.

      Third, as Bennett contends, 3Ls are too “novice” to accept, no less desire, real critique. Whether he’s right is a point of disagreement, that he may well be. That said, is this something we should enable and perpetuate? Because 3Ls can’t handle the heat (with helicopter parents hovering above), do we acquiesce to their self-esteem needs knowing that they will hold people’s lives in their hands in a year, or do we give them a smack and tell them to grow the fuck up and get over their narcissistinc whininess?

      If it’s not a good thing that 3Ls are unprepared to be lawyers, do we accommodate it or fix it?

      • “fix it”?

        He suggested a fix – mentoring a la in the medical profession – and you shot him down in the harshest possible terms (“you have no prin­ci­pled posi­tion ,” etc.). How would you fix it? By just being a jerk to everyone who needs improvement? You’ve got lots of critiques about legal pedagogy, Scott, but you seem pretty short on solutions.

      • shg says:

        I’ve written often about solutions, but this is a post about a specific issue that apparently eludes you. Feel free to criticize my point, but try to be reasonably accurate in your attack.

      • Akio Katano says:

        I feel as though what you see as “real critique” is a matter of ideology. The point of the Sandwich Technique – which could use another name – is that it is a pedagogical method that has been found to be effective in developing the skills of novices. Your rejection of it, as far as I can tell, is because it does not conform to your moral understanding of how people ought to be treated rather than because of any realistic concern about its effectiveness.

      • shg says:

        Not sure where you got moral out of this, but I don’t see any moral connection at all. Rather, I question its utility as law students progress to the point where they’re nearing graduation.

        It strikes me as not only an ineffective method to produce competent lawyers, but counterproductive to perpetuate the coddling by third year of law school. At some point, they have to make the shift from children to lawyers, or to put it in pedagogical terms, to move away from the novice end of the spectrum closer to the expert end.

        Granted, they aren’t experts, but there needs to be a point where they no longer have to be treated like novices either, and have a real desire to improve their skills to the point where they can be trusted to hold client’s lives in their hands.

        So moral? I don’t see it at all. This is all about effectiveness for the benefit of the client rather than effectiveness for the self-esteem of the student.

  12. Jordan Lewis says:

    To the extent that praise is mandatory, then I agree that the Praise Sandwich is not ALWAYS the right approach. The same could be said for any tool, heuristic, guideline, etc. They’re rules of thumb that work well enough in enough instances that they’re worth using as a default. And when orienting new instructors who may not have any prior experience at instruction, it’s probably worth pointing out. Worhout question, Some performances leave so much to be desired that everyone is disserved by pretending otherwise.

    That said, the crux of the discussion, as I understood it, was whether the method generally fits the scenario of teaching 3L’s to be advocates. (To the extent that it’s not what we were supposed to be talking about, maybe our different views are explained by the fact that we were having different conversations.)

    I do not disagree that 3L’s are overly-entitled, and that the fact that they will be representing people TOO SOON is a problem. But when you look at the reality of their ADVOCACY experience–the only way to gain expertise–they are clearly novices. They have, at most, 50-100 hours of training and experience; I suspect that a majority had fewer than 20 hours, and that an appreciable number had none. That does not–and cannot– an expert make, especially in a field as non-intuitive (at least for most folks) as oral advocacy

    The research shows that, when teaching a person new skills, you will GENERALLY get better results with a softer hand. It has nothing to do with them being whining pussies, although this likely amplifies the effect. It is about human nature. Telling a person who believes that he is smart and capable that he is stupid and inept creates cognitive dissonance. Some people have the capacity to learn from the dissonance, but most people will give up if the dissonance becomes too great, or if they feel like they just can’t do anything right. The research would seem to indicate that this need for reassurance decreases as competence and experience increases, or, as the person moves along the continuum from novice to expert.

    I agree with you that the Sandwich Method is not always appropriate. But I agree with Mark that 3L’s are advocacy novices. Well, maybe “beginners,” if they’ve had some experience, but certainly not experts.

    The research shows that the Praise Sandwich is, at this stage of development, more likely to result in more effective teaching (i.e. transfer of actual knowledge from teacher to student). So whether or not you LIKE the method, that seems to make its use a no-brainer, unless the specific situation calls for a different tack.

    Finally, I don’t know whether your experience consisted of a semester-long course (that was my impression) or a couple of workshops. If the former, I would argue that the need for the Sandwich Method should decrease over the course of the semester, but that doesn’t mean it’s not a good starting point. By the end of the semester, you probably should be more willing to “smack them on the head and tell them grow the fuck up.”

    And it may well be, for the right student, the way to start. The problem you described in your blog seems simply to be a young lady who was a novice but thought she was an expert. For folks like that, a firm slap-down/putting-in-place is likely the best course. I agree that this is an appropriate exception to the usual rule of using the sandwich.

    I just don’t see the method, when properly used, as enabling the continuing pussification of the modern law student. I see it as a proven and reliable method to make the best use of the limited instruction time you have with pupils. To the extent that you already see a population of mewling babies, I can see your objection. (BTW–I don’t disagree with your assessment of them, and I can understand why you have the visceral reaction to the method that you do.)

    To everything there is a season. When a person is in their infancy of learning a new skill, their teacher will be a more effective teacher if he includes positive reinforcement along with the areas that need improvement. When the student gets too big for his britches, the instructor can and should slap him down.

    If you take a no-holds-barred approach from the start, the students who are tough enough to handle it in the first place will stick around, but they’re not the ones you’re concerned about. In the meantime, you are far more likely to run off some folks with the talent and experience to make competent, zealous, and effective advocates for their clients, but who need some practice, experience, and coaching to hone those skills. No one can say what will become of them, or their future clients. Perhaps they’ll find someone whose teaching style matches their learning style. Or perhaps they’ll be convinced that their professor was right and they’ll never be a good trial lawyer, so why not plead all their clients?

    No rule can account for every possibility. So on the question of whether you should always use the sandwich, we agree: No. On the question of whether it enables weenies to be weenies for a while longer, I haven’t decided what I believe, but I can certainly see why you think it does. But in the question of whether it is GENERALLY the right method to apply to 3L advocacy students, I think we disagree: I think it is clearly the appropriate default.

    Would you rather–if you had to hire a first year lawyer–hire the kid who at least made an effort to get better with each session of his advocacy class, or the kid who got scared off by his professor after 3 weeks. The former, for several interrelated reasons, right?

    In the absence of an internship, the only solution is to leave them as well prepared for being a lawyer as you can. Whether ‘toughness in the face of assholes,’ or ‘competence in the courtroom’ (admittedly not completely separate) is more important comes down to a value judgment. There are arguments for both, but I favor the latter.

  13. shg says:

    You’re still trying to have it all ways. By the time you’re done explaining your thousand caveats, the course is over, the students have graduated and passed the bar and they can’t remember your name. And no one has learned anything.

  14. Jordan says:

    Not trying to have it all ways. Simply recognizing that 3L’s aren’t even close to experts, regardless of what they’ll be doing in a year, or where you think they should be in their development.

    When you work with law STUDENTS, you can treat them as though they are what they are (novices who may or may not be whinier than the general population of a comparable age), or you can pretend that they’re something they’re not (experts of whom much should be expected). To the extent that your approach affects your pedagogy, it will likely affect your outcomes.

    I have conceded that the Praise Sandwich is not a tool that should ALWAYS be used; however, I will not concede that, just because a 3L will be representing people in a year, this makes him an expert, or that treating him as though he is one will lead to effective instruction. The research and my own experiences tell me otherwise.

    You may, of course, believe whatever you wish. Whatever you believe about your 3L’s, they are not experts, and expecting them to receive benefit from instruction as though they were experts is unrealistic. It may irritate you to recognize that you’re dealing with people who don’t know what they’re doing, but that’s a separate issue.

    If your goal is to impart as much skill to these folks in the limited time that you have with them (and that they have before they’re responsible for others’ lives), then I would argue you should use the methods that demonstrably do just that. The Praise Sandwich, when used as a rule of thumb (as opposed to an absolute) is such a method.

  15. shg says:

    If you are right, then we are doomed to a next generation of inadequately prepared and overly delicate lawyers. And you may very well be right, which is largely the problem. Thanks for the discussion, Justin. It’s been helpful.

  16. Jordan says:

    It’s already here. You and Mark write about it regularly. Rakofsky sued you for it. Given my experience at the undergraduate campus where I worked, and the anecdotes I hear from others, it’s not limited to the legal world, although the consequences are admittedly more profound here than in most fields. (And how many other judges would let the Rakofskys of the world slide? I take it that’s largely your point.) The Boomers managed to raise a generation even more entitled than they were.

    I know how woefully unprepared I was to be an on-my-own lawyer, and I had orders of magnitude more advocacy training in law school than my average peer. I still regard myself as somewhat ahead of the curve given my time in practice (don’t we all?), but what experience I do have has taught me is that I am still improving but have a long way to go before I’m an expert trial lawyer.

    As far as I can tell, there have always been lawyers who were serious about being good lawyers, and those who weren’t. The same is true of your students. As law schools churn out more lawyers, they will churn out more whiney, unserious slap-dicks. (Although my impression is that law students have always largely been an entitled bunch, and it has just amoplified as the general population moved towards the ‘new normal’ of entitled wusses.)

    All you can do is what you can do: For students who are serious about getting better, I’d argue for using whatever is effective (which includes making sure they know what they’re doing right). For those who are not serious, and who just want a tummy rub, try not to waste too much time. You’re not likely to make any real difference there.

  17. Hello,

    I just posted a long perspective about the sandwich theory and feedback more broadly. If you’re on Facebook, feel free to check it out!

    Cheers,

    Jeff Deutsch

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