This week’s teaching tidbit addresses a technique for helping your students grow their analytical skills after they have completed a formative assessment. Many law professors provide model answers or issue outlines for midterm essay exams so that their students get a clear understanding of expectations. Many others provide, with the students’ consent, the answers of the three students who received the highest scores on the assessment. Both are good practices. The first elevates transparency and completeness. The second emphasizes something students do not often understand: they can perform excellently and get very high grades in more than one way. This blog post focuses on a third option that addresses a key deficiency of the first two, a specific teaching technique called a cognitive think-aloud.

The problem with model answers or best student answers is inherent in what the students see: a finished product. That finished product is the result of a lot of brainstorming and analyzing that occurs as the author reads the hypothetical and thinks about it, outlines and answer, and writes the answer. Students who do not do well on assessments struggle to understand key facets of the process: how the author

• Recognized that certain issues were not implicated by the facts, 
• Identified issues that they should quickly raise and resolve because the outcome was indisputable and other issues that are complex and indeterminate, and therefore require in-depth analysis, 
• Classified facts as relevant or irrelevant to each of the issues, etc.

A cognitive think-aloud is an effort to address this gap. It starts with asking students to read and answer an exam-like hypothetical. Having the students only outline an answer would also work, but students would not get as rich a learning experience. The professor then speaks aloud their thinking first as they read the question and then as they outline their answer. (I do not recommend trying to share one’s thinking while writing out a full answer because the students might die of boredom.)

Ideally, another expert (almost always a professor colleague) will also be in the room because, as a result of their expertise, all experts skip steps. The second expert’s role is to ask the professor questions to help the students understand skipped steps and speedy conclusions. For example, within about two minutes of reading a contracts hypothetical, contracts professors can ascertain whether the hypothetical is testing, for example, formation and defenses or contract performance and damages. The professor may just immediately start talking about contract performance and damages; the second expert knows to ask the professor to explain their speedy rejection of formation and defenses as issues. This mental skill is critical to finishing an essay exam answer; no essay hypothetical allows time for students to analyze questions not raise by the facts. 

Another skill experts deploy with little conscious effort is to identify which facts relate to which element of an applicable rule. Experts just start matching facts and doctrine; the second expert can ask questions that require the professor to explain each such choice.

It is possible to do a cognitive think-aloud in writing, and I have done it. With my very first practice exam, I have the students complete an answer and compare it to a model answer I have written. My model answer uses italic font for the thinking parts and regular font for the parts that constitute the answer.

An Important Aside. The technique also works well in office hour appointments with a struggling student. Ask the student to speak aloud their thinking as they read the question and outline an answer. The professor can take notes and address errors at the end or as the student is working. Sometimes, I learn things about student struggles that are helpful for many other students in the class and so I reference what I learned in the next class session (without identifying the student, of course). 

Having used this technique multiple times in multiple courses at multiple law schools, I can say with confidence that it helps some students every semester who would not otherwise understand what they need to be doing on my exams. If you want to see an example or if you give it a try and would like to discuss what you learned, please contact me at mschwartz@pacific.edu.