Giving Feedback on Practical Legal Skills
Lawyers in law firms, professors in law schools, judges in legal skills competitions, supervisors in legal clinics, and other legal professionals are often called upon to give feedback on another person’s practical legal skills. Done well, such feedback is an excellent tool for learning. But it is fair to say that there is an art to giving feedback, and it is certainly an art worth developing and refining. Yet many of those involved in assessing legal skills have little or no formal training in how to provide effective feedback to young lawyers, trainees, students, and others. The fields of medicine, nursing, social work, teacher education, and business all seem to be far ahead of the legal field in focusing on how to give effective feedback on practical skills.
This article presents an overview of the art of giving feedback on both written and oral practical legal skills. In doing so, it assesses the suggestions offered by commentators and draws heavily on empirical and academic work in non-legal fields as well as experience gained in clinical legal education settings and legal skills competitions. Based on this analysis, it recommends “best practices” for the legal profession to follow for giving effective feedback on legal skills performances.
The Art of Giving Feedback on Practical Legal Skills
Giving effective feedback on practical legal skills performances is not easy. In fact, poorly delivered oral feedback by judges is one of the most frequently raised complaints by the participants (and coaches) in legal skills competitions. It is also a central issue for those in clinical settings. Effective feedback is both positive and constructively negative. It is readily apparent that young lawyers, law students, and even lawyers with substantial experience all often find it difficult to hear both the positive and negative equally. Persons receiving feedback frequently tend to discount one or the other.
Furthermore, both giving as well as receiving feedback can generate strong emotions. As a result, persons giving feedback may be tempted to take refuge in being nice and bland. Persons receiving this type of feedback may rightly feel frustrated because they often internally know that there is room for improvement. In contrast, if persons giving feedback have had a strong negative reaction to the skills performance, especially when moral or ethical issues are involved, the feedback may become extremely harsh, both in terms of tone and substantive content. As a result, persons receiving feedback may become angry and defensive, or even depressed. Others receiving feedback may have difficulty in accepting positive feedback—becoming embarrassed or resistant. Cross-cultural factors, including issues of losing face, norms of direct or indirect communication, and ethno-centrism, can easily exacerbate the task. Those factors, of course, make giving effective feedback even more difficult.
What are the Overall Goals of Feedback?
The basic overall goal of giving feedback is to increase the recipient’s self-awareness. As commentators frequently recognize, feedback is really all about the communication of feelings and perceptions by one individual to another about the latter’s behavior, legal skills, and style of working. The main function of feedback is to provide data about a person's behavior and its effect on others. The objective of feedback is not to intimidate the receiver, because intimidation frightens, inhibits, and discourages the recipient.
What are the Characteristics of Good Feedback?
The characteristics of good feedback can be summed up by the following list of adjectives: Good feedback is
Supportive in tone
When Should You Give Feedback?
To be effective, it is important to aim for the right time to give feedback on practical skills performances. Commentators agree that spontaneous feedback tends to cause trouble, especially when emotions are running high. It is better to wait until everyone has calmed down. (In some circumstances, like at competitions, this may not be possible; thus, giving feedback at competitions may require extra sensitivity.) When possible, give the recipient a reasonable amount of time to self-reflect and self-assess. Likewise, it is important to give feedback only when you are prepared. That means having your own emotions under control, having time to reflect on what you are going to say, and planning how to say it.
On the other hand, waiting too long to give feedback can cause serious problems. Doing so can cause what commentators describe as a psychological “disconnect" between the actual performance and the feedback. Instead, feedback needs to be timely, which means a time when everyone can still remember what happened, but not so soon that emotions are running high. According to a number of commentators, one way to tell if you waited too long is if the recipient looks surprised by your feedback.
How Should You Arrange for the Feedback Session?
First of all, you should inform the recipient in advance of the feedback session. In addition, select a good location for giving the feedback. As one commentator has aptly stated, while public recognition is appreciated, public scrutiny is not. Furthermore, public feedback sessions have the potential of causing the recipient to lose face—a powerful barrier to receiving feedback positively. Thus, you should select a “safe” place to talk—one where you won't be interrupted or overheard. (Again, in certain situations, the location may not be flexible; giving feedback in public may not be optional, but it can be done positively and constructively in a way that will minimize embarrassment or negative reactions.)
Some commentators recommend that you should choose a private but visible setting, such as a glass cubicle or glass window conference room, where you and the other person are physically comfortable. Some commentators also suggest that sitting beside the recipient will minimize a position of power on the part of the person giving feedback, but the utility of this suggestion is likely to depend on social and cultural factors.
How Should You Prepare for the Feedback Session?
Many commentators recommend that you should conduct a feedback session only when you are fully prepared. Planning helps avoid generating emotional responses and raised defenses. There are three keys to organizing your preparation. First, decide what you want to accomplish at the session. You don’t want to overwhelm the recipient with a “shotgun” approach. Instead, consider carefully what needs to be discussed, how it should be discussed, and in what depth. Second, make sure you make a specific list of the questions you plan to ask the recipient before giving your own insights and feedback. Third, collect the back-up material supporting the feedback. Importantly, you want to try to find specific examples or illustrations to support your comments. If the feedback is given in a teaching context, use video if it is available.
Don’t assume that more-is-better; focus on only a few issues. Those issues should be the core ones, not minor symptoms. Relate feedback to performance, behaviors, and outcomes. Emphasize correctable deficiencies. Do not be tempted to discuss aspects of personality, intelligence, appearance, or anything else other than behavior. The consensus is that feedback should be weighted toward the positive, but it should include enough negative to make the comments valid and encourage the recipients to do better.
What Are the Specific Recommended “Dos” in Conducting the Feedback Session?
A survey of the specific recommendations offered by commentators reveals the following as their principal suggestions:
Put yourself in the feedback recipient’s shoes and treat them as you would like to be treated.
Use receptive, positive body language.
Be sure to start with questions rather than leading with your assertions and insights.
Make the session a two-way conversation. One widely recommended approach is to have the performer describe what went well, followed by the person giving feedback stating what the performer did well; then the performer identifies what could be improved, followed by the person giving feedback identifying areas for improvement and how to achieve that improvement.
Acknowledge and reinforce exemplary behavior.
Use precise, descriptive, and neutral wording. Effective performance feedback foregoes easy clichés. Give the feedback from your perspective; use "I" statements. For example, use phrases like, "What is your reaction to this?" or "Is this a fair representation of what happened?" Also, try "I've noticed that" or "I realize that" to take the blame out of the situation. Presenting feedback as your opinion makes it much easier for the recipient to hear and accept it, even if you are giving negative feedback. Another way to soften negative feedback is to say, “I feel . . .” and “It’s my understanding that . . .”
Use concrete examples, especially if the feedback is negative. Emphasize correctable deficiencies. Provide suggestions and opinions on how problems identified can be resolved, with alternatives if possible, so that the recipient has choices to make to change his behavior, thinking or attitude.
Try using visual aids during practice sessions. If you are helping someone prepare for asking questions of a witness or practicing an oral argument, you can use stuffed or preserved animals representing speech patterns or habits that need to be avoided. For example, one of the authors (Professor Schultz) uses an alligator head to remind a questioner to stop beginning each question with an “and.” As she aptly states, “I only have to explain it once—after that, they see it and then they start to hear the ‘ands,’ which is the first step to eliminating them.”
Labels do serve some useful functions in feedback. As two leading commentators have aptly observed, “Like the soup label, they give us a general idea of the topic, and they can act as shorthand when we return to that topic later. But the label is not the meal.
If you use a label, it could be followed by “Let me describe what I mean and you can ask me questions to see if I’m making sense.” For example, if you tell someone they acted “unprofessionally,” what does that mean exactly? Were they too loud, too friendly, too casual, too flip, or too poorly dressed; did they violate ethical provisions, etc.?
Overcome defensiveness by returning to your valid examples until the recipient is ready to accept responsibility and work out a plan to promote change. If you don’t hear the acknowledgement, continue to present evidence you can use to convince the recipient that a problem exists and that his or her performance or behavior needs to change. Provide suggestions and opinions on how problems identified can be resolved, with alternatives if possible, so that the recipient has choices to make to change his behavior, thinking or attitude. But don’t push anxiety into paralysis
Target unconscious drivers by stating what the suggestion would accomplish (the benefit) and what problem the suggestion would prevent or avoid. Critiquing too many areas of weakness may make the recipient feel overwhelmed and deflated. Too much feedback, whether positive or negative, can generate cognitive overload and a decreased perception in the student of teacher confidence in their ability and a corresponding decrease in their own perceptions of control. Remember that focusing on evidence and the effects of performance prevents you from being distracted. If the feedback recipient tries to steer the conversation to other topics or other people’s actions, take the time to listen and consider alternative opportunities for improvement or table other topics that are brought up for coverage in a separate meeting.
Recipients hear a very different message when controlling words such as "must," "should," and "do not" are used than when they hear supportive words or phrases, such as "consider" or "you might want to try.”
Many commentators recommend some form of “feedback sandwich.” The method consists of positive comments or praise, followed by corrective feedback, followed by more positive comments or praise. In other words, the corrective feedback is “sandwiched” between two layers of praise.
In the United States and most western cultures, direct communication is usually the preferred style. “Direct” communicators give and take the feedback at “face value.” In other cultures, including African and some Asian countries, indirect communication is more prevalent. Be especially careful when the feedback is given in a cross-cultural context, especially when the communication styles of the parties differ. If the person giving feedback uses “indirect” communication (in which the meaning is more subtle) and the recipient is expecting direct communication, it is likely not to be understood or beneficial.
Commentators recognize that it is possible to use peer observation as part of debriefing. However, the recipients may feel that peer responses are as uninformed as their own and not really trustworthy; thus, it is widely suggested that peer feedback needs to be coupled with your own feedback.
What Should Be Avoided in Giving Feedback? A review of what commentators suggest to avoid in giving feedback is a long one. Many of the suggestions are obvious, but they are worth repeating because they serve as reminders of how things can go wrong.
Avoid giving feedback when you are angry.
Avoid labeling the person.
Avoid absolute terms, words, and overgeneralizations, such as “you always . . .” or “you never . . .” unless it is true in every instance.
Avoid words like "never" and "always" because the person will typically become defensive.
Avoid insulting and hostile language.
Avoid words such as “should,” “could,” “must,” or “ought to.”
Avoid blanket statements, such as “you need to do better.”
Avoid lecturing with an arrogant tone.
Avoid belittling the recipient.
Avoid making the recipient feel insignificant and incapable.
Avoid personal attacks and blaming.
Avoid inserting “but” after a positive remark (use “yet”).
Avoid conclusory evaluative language—such as “you are wrong,” “that idea was stupid,” “that was the worst oral argument I have ever heard,” “that document was a total disaster,” etc.
Avoid using generic terms such as “excellent,” “well done,” and “great job” because they tend to be meaningless, especially if used constantly in feedback sessions; while saying something like "great job!" or "fantastic work!" gives appreciation, this kind of general compliment does not tell the person what he or she has done right, in other words, what behaviors to repeat or increase. Consider, for example, which of the following would be more helpful: "Good work!" or "I appreciate your professional approach. This was a difficult and demanding assignment, and you did thorough research and met our deadlines, even though I know it meant working late a lot of nights. Your reports were clear, well organized and carefully written--just what we needed." Also avoid nodding in approval all the way through the presentation or words of encouragement; that will likely confuse the recipient when you then deliver negative feedback.
Avoid mixing cathartic goals (providing psychological relief through an open expression of strong emotions) with catalytic goals (causing change to happen more quickly) in the same feedback session.
Avoid overmixing praise and criticism.
Avoid fastening and dwelling on a single error, especially if it is minor. A ten-minute public lecture about an error or even a two-minute private response to something that was not intended to be the assignment is likely to be discounted.
Avoid overwhelming the recipients with instructions and suggestions to the point where they miss crucial information. Remember: do not go too far, feedback is not psychotherapy, do not go too deep, stay task focused, do not stay too long in one emotional place, and empowerment means moving forward. Similarly, a document returned covered with red ink is destroyed by the process that was supposed to make it better.
How Should You End the Feedback Session?
Several commentators suggest ending with a brief summary, followed by a reminder of the key suggestions or an action plan for improvement. During the conclusion, try to make the recipient feel cared for and valued. Help the recipient see that your feedback is actually a “gift.” Finally, after the session is over, reflect after the feedback session: What seemed to go well? What should be changed the next time? What new strategies could be adopted for future sessions?
The substance of this article has been extracted from a presentation by the authors at the Global Legal Skills Conference on December 11, 2018 in Melbourne, Australia. For purposes of this present article, academic citations and references have been omitted.
About the Authors
Professor Larry Teply holds the Senator Allen A. Sekt Endowed Chair in Law at Creighton Law School in Omaha, Nebraska USA. He teaches Civil Procedure and Negotiation. He has long been involved in teaching lawyering skills and coaching students in skills competitions. He is the author of West’s Legal Negotiation in a Nutshell (3d ed. 2016) (most recently translated into Chinese). He has served as the Chair of the American Bar Association’s Negotiation Competition Subcommittee (responsible for the American negotiation competition for law students) and as the Chair of the entire ABA Competitions Committee (administering moot court, arbitration, and client interviewing competitions as well). He is one of the cofounders of the International Negotiation Competition for Law Students.
Professor Nancy Schultz is the Director of the Competitions and Alternative Dispute Resolution Programs at Dale E. Fowler School of Law at Chapman University in Orange, California USA. She coaches teams for interscholastic competitions in trial and appellate advocacy, arbitration, pretrial advocacy, mediation, negotiations, and client counseling. She has taught Client Interviewing and Counseling, Negotiations, Mediation, Resolving Disputes Across Cultures, Advocacy, Legal Research and Writing, Legal Writing Skills, Legal Drafting, Civil Procedure, and Advanced Legal Analysis. She has served on the ABA-Law Student Division Competitions Committee for several years. Currently, she serves on the International Client Counseling Competition Committee and the International Negotiation Competition Committee, where she is the North American representative to the Executive Committee. She has also chaired the International Law School Mediation Tournament.
Professor Joel Lee is a Professor of Law on the Faculty of Law at the National University of Singapore. He was one of the pioneers of the teaching of negotiation and mediation and has played a significant role in furthering the development of mediation in Singapore, not just in education, but also in practice. He is the principal mediator with, and the Training Director of, the Singapore Mediation Centre. His principal areas of interest are teaching methodology, appropriate dispute resolution, negotiation, mediation, conflict of laws, and neuro-linguistics.
He has received the Outstanding Educator Award, which is the National University of Singapore's highest teaching award.
Johanne Thompson is a Senior Lecturer at the Law School of University of Kent in Canterbury, England. She is Director of Education for Stage 1 and Deputy Director of Admissions. She convenes and teaches, inter alia, criminal law to LLB students, advanced criminal law to Senior Status and Joint Honours students and also the Certificate in Law Route to LLB students. She is deeply involved in legal skills and convenes the Client Interviewing module. Her teaching skills are highly regarded. Externally, she is the Regional Director for the South East Region for the Client Interviewing for England and Wales. She regularly judges both national and international competitions for client interviewing, mooting, and negotiation.