This post on the topic of giving more time to test-takers with disabilities makes sense to me:
But my sense, from having practiced law and seen a lot of law school exams, is that our exams vastly overvalue the skill of thinking quickly on your feet relative to the importance of that skill in practice. For many issues in most practice settings, time is, within reason, on your side. Most briefs don’t have to be written in a couple of hours, most research and discovery projects don’t require the sort of speedy processing that our exams tend to test for, and virtually nothing in legal practice much resembles the act of writing a memo in an hour and a half identifying issues in a complex fact pattern. The skills of thinking through different and conflicting lines of precedent and developing legal theories and litigation strategies are often quite important in legal practice, but the ability to do those things in a three-hour period is far less so. Yet on our exams we highly value the ability to think through these issues quickly — even though in most practice settings you would never rely on a synthesis of precedents or legal strategy developed in only three hours, and the people who can come up with the best synthesis of precedents or legal strategy in a three-hour period are not necessarily the same people as those who would come up with the best answers over a few days of thinking about the problem. (Obviously there are differences across subjects here. I would think that an evidence class should value speed more than a jurisprudence class, to take an extreme comparison.)
If, as I think is often true, our examinations overvalue processing speed in relation to the importance of that skill in legal practice, I believe that the solution is to give all students more time. For this reason, I give take-home exams wherever possible. Particularly with 48-hour take-home exams, I believe that every student will have an ample amount of time to demonstrate his or her skills, and no student will need extra time. This avoids overvaluing speedy processing and avoids any potential unfairness of giving some students, but not others, extra time.
I hope to give some sort of take-home exam where students will have 24 hours to finish it–more than enough time.
And you know, I was wondering what Scott Greenfield would thank. Thankfully, his comment is right there:
Attorney: Objection, Your Honor.
Judge: Huh? What are you objecting to?
Attorney: The question my learned adversary asked yesterday, just after lunch.
Judge: I think you’re a bit late on your objection, counselor.
Attorney: Well, Your Honor, perhaps you aren’t aware of this, but even though I was first in my law school class, I’m a slow processor.
Judge: And I care about this why?
Attorney: I am allowed extra time, Your Honor. I was at Harvard, and certainly this Court doesn’t consider itself more worthy of my processing than Harvard.
As long as you can provide an absolute assurance that no student who receives extra time because of slow processing ever steps foot in a courtroom or other place where he could compromise a client’s interest, since all lawyers are admitted as generalists and otherwise have the license to do so, it’s good with me.
Otherwise, neither your concern nor that of your slow processing student trumps the interest of the client whose life, fortune or rights are lost in the name of accommodation. We don’t practice law for our own benefit, but for the benefit of our clients.
If you walk into court totally unaware of any possible evidentiary issues, and have to take hours to think about it, you failed already. If stuff comes up that you didn’t anticipate, then you have to think on your feet. I gather questioning in class and other activities can prepare a students for that. A single examination, not so much.
Sam’s response to Scott seems right:
First, it seems to me silly to say that because lawyers in court will be forced to make evidentiary objections quickly we should give great weight in *all* of our testing on *all* of the major subjects in law school on the skills that correlate with the ability to make evidentiary objections quickly. (The point holds true even if we say *most* of our testing on *most* of the major subjects, I think.) Someone who is really quick on her feet in making evidentiary objections may nonetheless quite poorly serve her clients if she cannot engage in the more deliberative process of developing a theory of the case and an investigation, discovery, and litigation strategy. The attorney who does well at those more deliberative tasks may be more valuable to clients than the attorney who does well at the more on-the-fly tasks. This is especially true given the very high proportion of litigation that does not culminate in a trial. (And that’s just in litigation. Lots of lawyers aren’t litigators.)
Second, even in the field of evidence, lots of the law of evidence is applied not in objections made on the fly, but in motions in limine, which often (but not always) involve a reasonably long gestation period. Indeed, as you know, the law of evidence is very important outside of court, when a lawyer is figuring out what evidence to try to obtain in investigation and discovery — decisions that again are more deliberative.