The Magic of Mistakes in Promoting Learning in the Legal Writing Classroom

Introduction

As a lawyer for almost 25 years and a professor for 30 years (many of these years overlapped), I have made my fair share of mistakes. As a lawyer, I soon became comfortable with the fact that mistakes are inevitable; fortunately, most of the lawyers I worked with believed that the focus should be on fixing a mistake instead of on pointing the finger at the culprit. But as a legal writing professor, I have always struggled with the fear of mistakes. I instruct my students that attention to detail is critical to succeeding as a lawyer, only to find that I made an error in one of my hypothetical problems or class presentations.

My fear of making mistakes or the shame that comes with making them does not make me unique. It is human nature to want to be right. In fact, I have often successfully (and no, I have not always been successful) stifled the urge to say, “I told you so,” when I was not only right, but I was right about being right.^[1]

I have noticed that my students have a similar fear, and I have seen them express this fear in different ways. First, I have observed that many students begin questions with this phrase: “This is probably a dumb question, but . . . ?” Second, in meetings with students, they will express concerns that they are not “getting it” and are deficient in some way that their peers are not. Third, every year, at the beginning of the semester, I ask my first-year students to tell me their fears (and hopes) when it comes to learning about legal writing. Inevitably, students will say they are fearful that their work “won’t be perfect,” that they are “anxious about not performing well,” or that they are worried their prior experience will be “useless” or “detrimental” to learning legal writing. Students have also expressed concern about answering questions in class because they “won’t know what to answer.”

Based on these observations, three years ago, I decided to embrace my students’ concerns about appearing “dumb” or making mistakes—I began holding voluntary writing spaces^[2] before every major writing assignment and began each session with a “dumb questions” session. I implemented one rule: each student had to begin a question with “I know this is a dumb question, but . . . ?” I noticed that participation in these writing spaces went from 6 or 7 students to 22 or more out of a class of 29. Students reported that the “dumb questions” sessions were extremely helpful, and two later told me that they had suggested the sessions to their summer employers, and that the employers had welcomed the idea.

The “dumb questions” sessions, in turn, sparked my interest in making mistakes: whether the fear of making mistakes is worse for law students than for other students and, if so, why; whether students do learn from their mistakes; and whether we, as educators, can be role models for students in teaching them to learn from their mistakes.^[3] This Article will explore these topics. Part I analyzes whether incoming law students fear making mistakes more than other types of graduate students; how generational issues and membership in underrepresented groups might intensify that fear; and how a legal education further advances that fear. Part II explains how law school promotes a fixed mindset instead of a growth mindset. Part III explores cognitive scientists’ research on the impact of making mistakes on learning; the relationship between mindset, grit, and mistakes; and how grit and a growth mindset are dynamic and can be nurtured. Finally, Part IV discusses teaching methods designed to encourage students to make mistakes and develop a growth mindset. A brief conclusion follows.

Law students—like all students—can ultimately benefit from making mistakes. And due to its unique characteristics, the legal writing classroom is an integral place for implementing a learning-by-errors pedagogy. Cognitive science backs the effectiveness of such an approach under certain conditions. I hope that the empirical research and personal strategies shared in this Article will empower other legal writing educators to embrace allowing their students to initially fail to succeed in the long run.

I. Incoming: New Students Enter Law School with a Fear of Fumbling

There is a case to be made that even before incoming law students attend orientation, they bring with themselves a fear of failure despite the many adages promoting failure as a key ingredient in success. The famous (and not-so-famous) quotes that correlate initial failures to successful outcomes are abundant, and they find their origins in the philosopher Saint Augustine’s classic argument “Si fallor, sum,” meaning “If I am mistaken, I exist.”^[4] Following this, Thomas Edison famously said, “I have not failed. I’ve just found 10,000 ways that won’t work.”^[5] Likewise, author James Joyce once described errors as “portals of discovery.”^[6] And Sara Blakely, the founder of Spanx, has discussed growing up with her father asking her what she had failed at recently—if she did not have an answer, he would be disappointed.^[7]

Law students, however, do not appear to have received the memo that mistakes translate into success—if they did, that message has been crushed by a more powerful one: law students should strive for perfection, and no law student should take any action that will embarrass them in front of their peers, their professors, or their teaching assistants.^[8] Unfortunately, various reasons might contribute to law students’ fear of being wrong even before they leave the starting gate. First, many students entering law school are prone to anxiety and depression because many are overachievers and perfectionists. Second, generational issues may come into play. Third, underrepresented student groups may be more prone to fear failure than other groups.

A. Personality Traits of Students Entering Law School

One culprit is the personality characteristics of many of the students who choose law school. Although most law students enter law school happy and hopeful,^[9] many also enter as “highly caffeinated overachievers in a race to the top.”^[10] In fact, most law students, especially at top-ranked law schools, have been top performers and have been “showered with adulation about their intelligence.”^[11] They are likely to have been told that they are gifted and bright.^[12] Some commentators have theorized that law school admissions committees often select students who are “type-A perfectionists and high achievers,”^[13] and thus “high in anxiety and prone to depression.”^[14] Perfectionism may stifle law students’ creativity, decrease self-esteem, and ultimately cause burnout.^[15]

Perfectionism can also translate into avoiding failure or making mistakes altogether.^[16] Studies have shown that high-ability students “do not always love learning, seek effort, and persevere through challenges; rather, they are often the most worried about failure.”^[17]

B. Generational Issues

Another contributing factor could be generational issues. Although students’ personalities should not be stereotyped based on membership in a specific generation,^[18] some trends do exist. While the age range of current law students is wide, scholars who have looked at generational trends in law students have focused primarily on the traits of Millennials and Generation Z^[19] (“Gen Z” or “Zoomer”^[20]) students.^[21] And generally, according to the Law School Admission Council, “[a]lthough most [law school] applicants are under 25, about 1 in 5 are 30 or older.”^[22] Therefore, while there are outliers, most students currently in law school are either Zoomers or Millennials.

As for students and new lawyers from the Millennial generation, mistakes are not their friends.^[23] Some scholars contend that the parents of Millennials hovered over their children and raised them “to believe that mistakes, criticism, and failure should be avoided at all costs.”^[24] This generation has been shielded from criticism; everyone got a trophy, and grade inflation soared.^[25] As a result, millennials may have difficulty even admitting that failure is possible.^[26] Therefore, Millennials may be fearful of making mistakes, in part, because of their upbringing.

In contrast, information about Zoomers and their approach to mistakes has produced mixed results. In a survey conducted by Ernst & Young of 1,400 Zoomers, over 80% of the respondents believed that “embracing failure on a project [would] help them to be more innovative.”^[27] The study concluded that Zoomers are “eager for innovation and accept[] that failure will likely be a part of the process.”^[28]

But some scholars have lumped Zoomers and Millennials together, suggesting that both generations “struggle to adapt to challenges and have difficulty acknowledging that failure is possible.”^[29] Further, when researchers have taken a closer look at Zoomers’ well-being, some have found that COVID-19 and the increased presence of social media have negatively affected students’ mental health, which, in turn, could impact their views toward making mistakes.^[30] For example, in one study of college students at a large American public university, the researchers found that social media usage at the beginning of the COVID-19 pandemic did not have a large impact on students’ mental health; however, increased social media usage 18 months into the pandemic—when students were largely back on campus—resulted in an increased likelihood of experiencing depression and anxiety.^[31] Similarly, in a small study assessing the impact of social media on anxiety in U.K. undergraduate students, researchers found that one theme students reported was that social media is a large cause of stress.^[32] Additionally, some students mentioned that seeing others post about their success on social media led the former to feel “anxious about not performing to the same standard.”^[33] Therefore, while Zoomers might be less fearful of making mistakes than Millennials are, there are some indications that like Millennials, Zoomers are not comfortable with mistakes.

C. Underrepresented Student Groups

Beyond generational issues, minority student groups might be more fearful of making mistakes. For example, in one study of undergraduate students in active-learning science classes,^[34] fear of negative evaluation (“FNE”)—often described as a “fear of being perceived as ‘stupid’ by [one’s] classmates”^[35]—“disproportionately impact[ed] students who [were] already underrepresented and underserved in science.”^[36] Specifically, the researchers found higher levels of FNE among LGBTQ+ students, first-generation college students, and students with disabilities.^[37] This fear, in turn, caused these students to “overthink their responses and participate less in class.”^[38]

Furthermore, this issue is not limited to undergraduates—the “law school culture [also] significantly affects minority student achievement.”^[39] In one study, for example, the gap in law school grades between white and Black students could not be explained based on their undergraduate grade point average (“GPA”) or Law School Admission Test (“LSAT”) scores.^[40] Sean Darling-Hammond and Kristen Holmquist posit that this gap may be, at least partially, explained by “stereotype threat.”^[41] Stereotype threat refers to the phenomenon whereby social stereotypes affect the cognitive functioning of members of a stereotyped group.^[42] Darling-Hammond and Holmquist posit that due to stereotype threat, a student of color “must work hard to suppress her concern that her performance will support a [negative] stereotype,” thus creating “extra work [that] tends to depress performance.”^[43]

In sum, many incoming law students’ fears of making mistakes and being perceived as “stupid” may be exacerbated by personality traits, generational idiosyncrasies, and/or minority backgrounds.

II. A Law School Education Makes Things Worse: It Promotes Anxiety, Depression, and a Fixed Mindset

Even if we assume that all incoming law students are happy and resilient, the nature of a legal education will swoop in and change that.^[44] Students enter law school as high performers—they may have never received a B before.^[45] That will change, and students must deal with the reality of class ranks, the emphasis on grades, and negative feedback from professors.^[46] Moreover, the Socratic method, trial practice, and activities like moot court, while designed to prepare students for the realities of practicing law, can also cause anxiety.^[47]

Cold-calling in particular is likely to cause anxiety.^[48] For example, in a program offered to first-year law students at Stanford, which was designed to help them cope with anxiety,^[49] students reported that they were afraid of failing during a mock exercise involving cold-calling.^[50] At the beginning of this exercise, a professor provided a hypothetical scenario designed to place the students in the shoes of someone who didn’t know the answer.^[51] Students were then asked to write down three thoughts or emotions—responses included “shame,” “embarrassment,” “inferior to everyone,” “I was the admissions error,” and “I feel stupid,” among others.^[52] Professor Jolly-Ryan has written that this fear forces students to enter “survival mode”: “They study for the short-term goal of appearing prepared in class in case their professor calls on them. The last thing a law student wants is to appear “dumb” before his or her law professors and peers.”^[53]

Beyond cold-calling, the pressure of a final grade consisting of a single exam sends a clear message that the grade a student receives is the sole measure of their intelligence.^[54] It also signals to students that learning is less valuable than the final assessment.^[55] As Professor Usman has explained, “In this system where success is measured against others’ performance and failure is costly, teaching students to ‘fail successfully’ is a challenge.”^[56] Similarly, Professor Bess has opined that the “extrinsic motivators of law school (grades and ranking) reinforce ability labeling—the process by which people are labeled as smart or not.”^[57]

In theory, many legal writing classes should produce less anxiety in students due to the ways in which they are structured: cold-calling is not as prevalent as in doctrinal classes; students are often placed in, and can rely on, teams; and students are not evaluated solely by the results on a single final exam.

But in other ways, a legal writing classroom can be even more stressful. Students are often new to legal writing, and as they learn this new skill, they may “initially ‘experience a significant breakdown of their existing skills’ and lose confidence in their ability to succeed.”^[58] The struggle to analyze case law and convert that analysis into writing can cause some students to “experience a loss of hope.”^[59] And a student’s perceived failure to have what it takes to succeed can even be worse in the legal writing classroom because the student must struggle with the “challenge and inherent messiness of drafting legal analysis and argument.”^[60] Moreover, although legal writing students don’t have a single final exam looming over them, many will receive critical feedback on their writing for the first time in their academic or professional careers—students may perceive such feedback as criticism and, therefore, “feel like they have failed.”^[61] Students may also become defensive and argumentative and assume something must be wrong with the professor.^[62] In other words, “[w]here once they were praised” for their excellent writing, they now feel like they have been “condemned.”^[63] “[N]egative feedback can be experienced as a form of social rejection, and that rejection [can hurt] emotionally and physically.”^[64] Indeed, in one neuroimaging study, psychologists found that “some of the same neural machinery recruited in the experience of physical pain might also be involved in the experience of pain associated with social separation or rejection.”^[65]

Thus, it is no wonder that law schools produce students suffering from anxiety and depression in higher numbers than any other group of graduate students.^[66] And legal writing students are not immune.

Beyond producing anxious and depressed students who fear failure, the law school atmosphere also breeds a “fixed mindset.”^[67] Students have a fixed mindset when they “view intelligence as a fixed quantity that they either possess or do not possess.”^[68] On the other hand, students have a growth mindset when they view intelligence as a “malleable quantity that can be increased with effort and learning.”^[69] Psychologist Carol Dweck, who first developed the theory of mindset, has shown that “one single factor—a student’s belief that intelligence is either fixed or malleable—profoundly affects the student’s ability to learn from failure . . . .”^[70] Furthermore, “individuals who equate success with demonstrations of competence recognized by others . . . and ascribe their own success to inborn traits . . . tend to be highly risk-averse . . . [and] give up quickly in the face of initial failure . . . .”^[71] In contrast, those who view success as a function of hard work and perseverance are less risk-averse and more persistent.^[72] As Dweck has explained, when a student with a fixed mindset is asked, “When do you feel smart?” the student will respond, “When I ace an exam.”^[73] However, when a student with a growth mindset is asked the same question, the student will respond, “When I’m working on something I don’t understand yet.”^[74] And when students with a fixed mindset face a challenge or setback, they can then have destructive thoughts, such as, “I failed because I’m dumb.”^[75]

In the context of legal writing classes specifically, students with a fixed mindset will view the first feedback they receive on their writing as a reflection of their intelligence both then and in perpetuity; in contrast, students with a growth mindset see only their “most recent evaluation rather than their first evaluation as an indication of their intelligence.”^[76]

In sum, many law students have a fixed mindset, which can lead to feelings of stupidity, and such feelings can make students afraid to make mistakes. Therefore, a fixed mindset is antithetical to learning. To combat this, the next Part turns to the lessons of cognitive science and learning theory that can have profound implications for law school students.^[77]

III. Cue Cognitive Science

Cognitive science can help inform law professors on how best to teach their students.^[78] Research shows that grit, growth mindset, and self-regulated learning are all traits that we should seek to instill in our students. However, the conditions under which these goals are best achieved matter. Fortunately, an understanding of the cognitive science of learning reveals these conditions. Therefore, in this Part, I survey the cognitive science research on these concepts before sharing how I have implemented them in Part IV.

A. Historical Background of Learning by Mistakes

The theory of whether people can learn from mistakes has undergone a large transformation over time.^[79] Traditionally, educators and psychologists in the United States did not want students to fail, and B.F. Skinner, the famous behavioral psychologist, “didn’t even like his lab rats and pigeons to err and constructed experiments to shape their behavior toward always getting the task right.”^[80] Skinner and other early learning theorists believed that “if the goal [was] to achieve errorless performance, students should learn in an errorless environment where only correct behaviors are encouraged, only correct information is presented, and errors are ignored.”^[81]

To compound this, in the 1980s, when national policymakers became anxious that students in the United States were being outpaced by their peers in other countries, many thought the solution was to improve students’ self-esteem.^[82] This “self-esteem movement” officially began in 1986 when California state legislator John Vasconcellos sponsored, and ultimately passed, a bill that established the Task Force to Promote Self-Esteem and Personal and Social Responsibility (or, the “Self-Esteem Commission”).^[83] The thinking was that low self-esteem was causing poor student performance, so the solution was to make students feel good about themselves by telling them they were smart and talented (rather than praising their efforts or adopting effective learning strategies).^[84] These views were erroneous, and researchers have now proven that “well-intended practices, such as praising students’ intelligence or talent . . . often backfire . . . .”^[85] While even well-known theorists like Dweck believe praise can help students, she has also cautioned that if not handled properly, “it can become a negative force, a kind of drug that, rather than strengthening students, makes them passive and dependent on the opinion of others.”^[86]

Dweck has shown that when students are praised for innate traits such as intelligence, they will be mistake avoidant and more likely to adopt a fixed mindset.^[87] For example, in one of her studies, 128 fifth-graders first completed ten problems of moderate difficulty.^[88] Regardless of their actual score, all were told that they had done well on the problem set.^[89] Additionally, one-third of the children “were praised for their ability . . . : ‘You must be smart at these problems,’” while another third “were praised for their effort . . . : ‘You must have worked hard at these problems,’” with the last third being the control.^[90] The students then completed a second problem set—this one more difficult than the first—and all were told that they had “performed poorly.”^[91] Finally, they completed one more problem set, which was equal to the first in difficulty.^[92] Students praised for their intelligence were more likely to attribute their “low performance” on the second problem set to low ability; however, students praised for their hard work were more likely to attribute the same to low effort.^[93] Summarizing their findings, Dweck and her co-author concluded that “praise for intelligence seemed to teach children to value performance . . . whereas praise for hard work seemed to lead children to value learning opportunities.”^[94]

B. Empirical Research on Learning from Errors

In a groundbreaking study comparing American and Japanese classrooms, researchers found that the strongest learning gains occurred when, instead of focusing more on the right answers, teachers allowed students to make errors and explore them.^[95] In that study, the researchers were analyzing why the math scores of Japanese students were much higher than those of American students.^[96] To do so, the researchers videotaped lessons in eighth-grade mathematics classrooms in the United States and Japan^[97] to compare the teaching methods employed therein.^[98] The videotapes showed that in the U.S. classrooms, teachers rehearsed and emphasized the correct procedures for particular problems, and they avoided or ignored errors.^[99] But in the Japanese classrooms, instead of beginning with teacher-directed classwork and an explanation, the students first attempted to solve problems on their own, which resulted in failed attempts—only after this did the teacher begin engaging the students.^[100] The Japanese teachers’ theory behind this practice was that they expected their students to make errors, but they viewed the time students spent struggling on their own as a key part of the learning process.^[101] And the teachers were correct—subsequent scholarship has confirmed the effectiveness of this learning method.^[102]

The current scholarly consensus is that when students make errors “as long as corrective feedback is given, memory for the provided correct answer is usually helped rather than hurt . . . .”^[103] In fact, teaching in a way that adapts to students’ preferred learning styles—i.e., engaging in specialized teaching for students who prefer to learn visually, aurally, or kinesthetically—has not been scientifically proven to increase learning.^[104] Conforming teaching practices to students’ preferred learning styles may also be ineffective because it means that teachers are not challenging students to build all types of skills and become self-regulated learners.^[105] Further, while law school professors may vary their strategies in the classroom through lectures, team-based learning, or some other approach, studies comparing the teaching methods used within different countries with high mathematics achievement show that teaching method does not necessarily correlate with achievement.^[106] For example, in one study, teachers in the Czech Republic and Hong Kong spent much of their class time using the lecture method, while teachers in the Netherlands had students work largely independently.^[107] But what teachers in those high-achieving countries had in common, in contrast to the United States, was that they engaged with students in the active struggle of learning integral concepts.^[108] And while many of the studies demonstrating this involve younger children and non-law students, Dweck and her colleagues have explained that fostering the right type of motivation and mindset can “improv[e] core academic outcomes . . . months and even years later.”^[109]

Educators and psychologists have studied the magic of learning through errors in a variety of ways.^[110] In a recent study, researchers evaluated different teaching strategies’ effectiveness at improving performance on an actual examination required for high school accreditation.^[111] A total of 177 students participated.^[112] The two-year study contrasted a “learning from errors” (“LFE”) teaching approach with an “explicit instruction” (“EI”) approach.^[113] In the LFE condition, students took a series of mini-tests, and their errors were then discussed in teacher-guided feedback sessions.^[114] In the EI condition, teachers had a list of topics to cover, and they structured their lessons “following their usual classroom practice.”^[115] Students participated in eight LFE sessions and eight EI sessions in total.^[116] Before the sessions began, the students took a pre-test to provide baseline scores, and they took a post-test at the end of the study.^[117] Overall, the LFE condition produced the more positive effect on learning.^[118] And specifically, “[i]nteracting with the students on understanding what the errors are and why they occurred, and collaborating on . . . how to avert them in the future seems to be the most effective approach.”^[119] Additionally, the researchers concluded that these results corresponded closely with the study comparing teaching methods in Japanese and American classrooms.^[120]

This finding added support to an earlier, groundbreaking study in which researchers compared the effects of producing and not producing an error on subsequent learning.^[121] In the study, researchers tested participants’ ability to link weakly related words (e.g., olive–branch, whale–mammal).^[122] In the test condition, participants saw a cue word (olive), guessed the target (branch), and then were shown the correct pair.^[123] Because the associations were weak, guesses were rarely correct. In the read-only condition, participants simply saw the cue and target together.^[124] On a later test, those in the test condition—who had generated errors—remembered the associations better.^[125] Subsequently, researchers have shown that to most effectively improve recall, “[i]t is not enough to simply tell learners whether they were right or wrong”; rather, feedback must provide the correct answer, and “people need to understand and pay attention to the feedback.”^[126] Further, studies indicate that a guess that produces an error “needs to be somewhat informed rather than a shot in the dark,”^[127] and semantic closeness between an error and its target “is a critical factor in determining whether an error will or will not help learning.”^[128]

C. Best Conditions for Learning from Errors

While one might assume that the more confidence a person has in an error, the more difficult it would be to erase that error, in actuality, the opposite is true: “[H]igh-confidence errors are more likely to be corrected on [a] retest” than are low-confidence errors.^[129] Because people are surprised or even embarrassed for having made a high-confidence mistake, they “may rally their attentional resources to better remember the correct answer.”^[130] In one study, undergraduates answered questions on a computer screen. If the answer was correct, it was presented in green; if it was wrong, the answer was in red. Simultaneously, a barely audible tone sounded after feedback was given, and students were to indicate if they heard it.^[131] The researchers found that participants were more likely to fail to detect tones presented at the same time as high-confidence error feedback than those presented at the same time as low-confidence error feedback.^[132] After the initial test and tone detection task, the researchers administered a surprise retest that consisted only of the questions participants had answered incorrectly.^[133] On the retest, improved performance was correlated with initial failure to detect a tone.^[134] These two findings, taken together, indicate that “the feedback to high confidence errors captures attention, and that this increased attention improves memory.”^[135]

Furthermore, in brain-imaging studies on the topic of error correction, researchers have concluded that the brain experiences greater activation in certain areas when people make high-confidence errors.^[136] For example, in one study conducted using magnetic resonance imaging (“MRI”), participants answered questions for several hours and indicated their confidence in their answers.^[137] The participants then entered an MRI scanner and were provided with the questions, their original answers, their original confidence ratings, and, for the first time, the correct answers.^[138] The researchers compared the participants’ brain activation levels after receiving corrective feedback and found that the areas of the brain related to “surprise, error detection, and attention” were activated more when the participants were informed of their high-confidence errors than of their low-confidence errors.^[139] Thus, not only can making errors be effective for learning in general; producing high-confidence errors followed by correction may be even more beneficial.

Another surprising finding that has implications for law school pedagogy is that students are unaware of the benefit of making errors even when they commit one and later correct it.^[140] In another word-association study, the error-generation condition (similar to the “test condition” in the previously described word-association study)^[141] produced the best memory recall on a final test.^[142] Nonetheless, the participants thought that they had done poorly in this condition.^[143] But they were “radically wrong: They failed to realize that generating errors greatly facilitated recall under this condition, even after having just experienced the enhanced test performance.”^[144] Such “lack of awareness of the benefits of error generation may contribute to the aversion to [making] errors”; thus, without training about the benefit of errors, students and teachers may not implement this highly effective learning strategy.^[145]

Also, while it might be instinctive for teachers to assume that they should teach material and then ask students to solve problems based on it, research shows that the opposite is true. If a student gives a wrong answer to a question before learning the underlying material—as long as corrective feedback is given—generating that wrong answer “results in better long-term learning than does learning based on recall alone.”^[146]

D. Lessons for Teachers

While the above studies all focus on the effects that making errors has on students, researchers have also found that student-made errors can provide critical information to teachers.^[147] Understanding the kinds of errors that students make grants teachers insight into what students are thinking, thereby empowering teachers to better target the “aspects of the to-be-learned concepts that need to be clarified.”^[148] And, in the law school classroom, when students give inaccurate answers to questions in front of the entire class, this can help students get the reassuring message that they are not alone in their struggle and help create a more welcoming environment in the classroom.

E. Grit and Marshmallows

No discussion of making errors would be complete without addressing the concept of “grit,”^[149] which has been defined as “perseverance and passion for long term goals.”^[150] “Because high levels of achievement require sustained effort on difficult tasks,” grit is a strong predictor of academic success.^[151] “Gritty” individuals “work[] strenuously toward challenges, maintaining effort and interest over years despite failure, adversity, and plateaus in progress.”^[152] Grit and growth mindset are closely related; in fact, “[c]hildren with a growth mindset tend to be grittier, and a growth mindset helps students to be grittier.”^[153] Gritty students are also more comfortable with mistakes—they want to know “what they did wrong and how to fix it,” instead of solely focusing on what went right.^[154]

Grit was first examined in the 1970s in a study involving preschoolers and marshmallows.^[155] Researchers gave the children a choice between having one marshmallow immediately—available simply at the ring of a bell—or having two marshmallows if they waited for the researcher to return. Some children rang the bell right away, but other children waited a full 15 minutes—a long time at that age. Years later, the researchers followed up with the participants and found a “significant positive correlation between children’s ability to wait as preschoolers and their SAT scores then they were seniors in high school.”^[156] In other words, “[t]he longer students waited for two marshmallows at age 4, the better their SAT scores.”^[157] Although grit is a “widely studied and popular psychological construct” that Duckworth popularized, many researchers have identified problems with the idea of grit.^[158] And even Duckworth, who wrote a book on grit and published her first study on it in 2007, has admitted that there were issues with some of the surveys she used to measure grit.^[159] In fact, in 2018, Marcus Crede, a social psychologist and outspoken critic of grit, reviewed the literature on point and concluded that “support for grit as a defining feature of success is limited” and interventions designed to increase perseverance “are limited in value.”^[160] He concluded that “grit literature is currently characterized by a number of serious theoretical and empirical challenges.”^[161] On top of the attack on studies on grit, some educators contend that the encouragement of increasing grit for Black students “ignores the significant injustice of societal racism and the toll it takes, even on those students who appear to be the toughest and most successful.”^[162] One educator characterizes the teaching of grit as “anti-black.”^[163] She argues that given the history of how enslaved Africans came to the United States and the challenges they face every day in the United States, questioning “whether African-American kids have grit is not only trivial but also deeply hurtful.”^[164]

Despite the controversy surrounding grit, researchers continue to explore its value to legal education. Because law students tend to be high achievers, one might expect that they have high levels of grit, and that those levels correlate with success in law school. As discussed below, however, the limited studies conducted thus far have not proven this.^[165]

F. The Grittiness of Law Students

Based on studies analyzing grit in children and college students,^[166] one might think that law students are gritty, and that such grittiness correlates with success in the form of a high law school GPA. But that was not the finding in one study undertaken to investigate the relationship between grit and law school academic performance.^[167] In this study, recent law school graduates were provided with an online survey measuring grit.^[168] The survey also asked respondents to report their final law school GPA, their undergraduate GPA, and their LSAT score.^[169] The researchers found that the participants’ grit levels were not significantly related to final law school GPA, undergraduate GPA, or LSAT score.^[170] Thus, their research suggests that grit is not related to law students’ academic performance.^[171] Notwithstanding these findings, the researchers suggested several alternative explanations for the outcome. For example, perhaps “once individuals possess a certain amount of grit, individual differences beyond that amount do not relate to differences in academic performance.”^[172] Perhaps the group that volunteered for the study was “just a generally gritty group.”^[173] It’s also unclear how generalizable this study is due to multiple factors: its sample size was very small, only 49 students;^[174] each participant graduated from the same law school;^[175] and the method to measure grit relied on the participants’ self-reporting, which was perhaps not completely reliable.^[176]

Subsequently, Professor Heather Baum has opined that despite the results of limited studies finding no correlation between grit and law school success, it is still necessary to explore this connection (or lack thereof) due to the slimness of the existing research and because it raises important questions such as “whether law schools are not rewarding students who demonstrate valued character traits[] . . . .”^[177] Therefore, to gauge “what [legal professionals] thought about character development,” Baum sent out surveys to practicing attorneys and members of the Legal Writing Institute (“LWI”).^[178] The majority of both sets of respondents believed that “character traits
. . . can be learned or improved over time.”^[179] LWI members, however, were inconsistent with respect to whether grit, specifically, can be learned, “reporting both that it can and cannot be learned.”^[180] When questioned about which traits are most important for new attorneys to have or learn, 39% of the LWI members responded with “grit/persistence.”^[181] In the practitioner group, 27% reported that “grit/persistence and confidence” were the most important traits for law students.^[182] However, when asked about which traits are most important for legal writing students, 51% of LWI members responded that “the most successful legal writing students demonstrate grit/persistence,” making it the top-ranked trait for that subset.^[183] In considering these responses, Baum concluded that “[c]haracter development is an important component of professional identity formation and should be explored” and integrated into the law school classroom.^[184]

Professor Megan Bess has also made a compelling case for including teaching pertaining to grit and growth mindset in the law school classroom.^[185] She emphasizes that it is legal educators’ responsibility to assist their students in developing traits such as grit and a growth mindset since such “non-legal skills [are] needed for successful lawyering and for developing all of the skills essential for young lawyers . . . [and] can have a profound effect on a student’s ability to learn.”^[186]

G. Nurturing a Growth Mindset and Grit

According to Dweck and her colleagues, “motivational or non-cognitive factors—[which] can matter even more than cognitive factors for students’ academic performance”—can be nurtured.^[187] Furthermore, even “modest interventions to change individuals’ beliefs about intelligence could result in lasting changes in personality traits such as ‘openness to experience . . . conscientiousness . . . sociability . . . [and] resilien[ce].’”^[188]

One of Dweck’s studies that demonstrated that students can change their mindset was conducted in the context of a workshop for low-performing seventh graders.^[189] Dweck taught them about the brain and effective study strategies.^[190] Additionally, half of the students were taught about how the brain changes due to “effortful learning”^[191] and were told that “intellectual development is not the natural unfolding of intelligence but results from the new connections that are formed through effort and learning.”^[192] The other half received a presentation on memory but were not told about the benefits of effortful learning.^[193] As the school year progressed, the students who were told about effortful learning displayed a growth mindset and were more willing to learn.^[194] Significantly, they became “much more aggressive learners and higher achievers” than the students who were not taught about effortful learning.^[195]

While one might assume that a study using seventh graders as participants is irrelevant to the population of students in law school, research has shown that it is not too late to change the way law students think because “the part of the brain responsible for critical thinking undertaken in legal education continues to develop throughout adolescence and into adulthood.”^[196] Not surprisingly, then, taking their cue from cognitive scientists, legal educators have jumped on the bandwagon and advocated that professors nurture a growth mindset, and they have done so in the context of the legal writing classroom specifically.^[197] For example, two law school professors have concluded that “faculty mindsets can shape students’ views about whether brilliance is a quality that they either have or do not have and whether this brilliance is something that can be nurtured and developed.”^[198] Similarly, Professor Kaci Bishop suggests that just like other skills, law professors can teach “students to react to failure with a ‘growth mindset’ and resilience and help them to engage even when something is difficult.”^[199] She has even advocated adopting a “failure pedagogy” in legal writing classes, wherein professors “give students more opportunities to deliberately practice rising up in the face of challenge, getting comfortable with struggle, and failing in a praiseworthy way.”^[200]

IV. Strategies to Grow Mindset and Grit

Throughout my years as a legal writing educator, I have developed multiple strategies to incorporate a growth mindset and a learning-by-errors approach into my classroom. Ultimately, what works best for each professor, student, and classroom will vary. However, what is most important (and what I have learned myself) is that we, as educators, work hand-in-hand with our students in the challenging but rewarding process of learning through our mistakes. In this Part, I share a few of the methods that have been successful for me and my students.

A. Setting the Tone Early

Although a professor should work to instill grit and a growth mindset throughout the entirety of a course, the first class^[201]—especially for a first-semester legal writing course—is integral for setting the tone on mindset.^[202] While I confess that I did not incorporate these concepts by name until recently,^[203] I have been implementing strategies to nurture a growth mindset for a while. Nonetheless, naming them is important. When I begin a legal writing course, the first thing I do is analogize the process of learning legal writing to any skill that takes time, practice, and hard work to master. I ask students to think about any skill they have mastered—a sport, a musical instrument, a language, etc.—and then I ask them whether they “got it” on day one. I will call on students to share with the class any skill or talent they learned over the long haul through practice and perseverance. Of course, they realize they did not become proficient overnight, and the learning continues indefinitely, but to illustrate, I show a slide of a spin bike (as an exercise enthusiast who has worked hard to train, I tend to use these types of analogies). The bike has a picture of a stick figure working hard and sweating with many different instructions floating around in her head: elbows slightly bent, knees slightly bent, head straight ahead, shoulders down, breathe through your mouth, spin faster, etc. I explain how the very first time I got on a spin bike, I had to get off after five minutes. I failed. But I got back up, and over time, I learned.

Another device I use is storytelling. My stories always stem from something that really happened, and I am sure all law professors who have been teaching for a few years have had similar experiences. For example, I tell the story of a student I had years before who had already had a successful career before coming to law school. Having succeeded in one area, the student assumed it would be easy to master legal writing quickly. When it did not happen immediately, the student came to my office and told me that I needed to teach the student to write immediately, and that the student would pay me as a tutor to make sure they mastered legal writing by the semester’s end. I told the student that no matter what I was paid, legal writing takes time and practice, and that’s the only way to learn.

The next thing I do is use the students’ peers to demonstrate the struggle of learning legal writing because information sometimes sticks better if its source is someone closer to the target audience in the learning process. I have three writing fellows (teaching assistants who were my former students), and every year I ask one of them to voluntarily display their first ungraded assignment, along with my feedback, to the class. The writing fellow does a brief presentation on how they felt after receiving that feedback (usually, the writing fellow will say that it was the first time they had ever received that much feedback), and then they talk about getting back on the horse to work on improving their writing skills. Lastly, I ask each writing fellow to talk about their own struggles—because they have taken my class, struggled initially, and eventually found success, their message is to work hard, and you will learn from your mistakes.^[204]

Moreover, I talk about my own struggles with legal writing. For example, I share with students that I earned a B+ in legal writing in my first semester of law school (to this day, that grade haunts me). I also talk about the criticism I received during my almost 25 years of practicing law—that even after a few years or practicing, my brief, while “workmanlike,” did not “sing,” and that I would lose sleep over how a brief should be organized and what key points I should make in it.

Finally, I stress in both the first class and throughout the semester that if students aren’t making mistakes and learning from them, then they are missing a key component in the learning process.

B. Creating a Failure-Friendly Classroom

Beyond the first class, I do my best to normalize failure and struggle throughout the semester.^[205] Lawyers are not known for owning up to personal mistakes, so this is not easy. But rather than focus on my wins, I focus on my losses. For example, an insurance company mistakenly started paying out on a policy to a person who was not an insured. When the insurance company stopped payment when it discovered its mistake, the person sued for bad faith. I filed a motion to dismiss on the ground that without a contract, there can be no bad faith. The trial court agreed and dismissed the case. I celebrated with the client, but the celebration was premature. On appeal, the court of appeals reversed. I tell the students that a colleague tried to cheer me up by saying that I was so persuasive, I convinced a trial court to commit reversible error.

I have also changed my approach when answering questions. The “old” me would answer questions from the perspective of a lawyer who has practiced for years and has developed an expertise in certain areas of the law. For example, if students asked me how long it took me to write a brief, or how many briefs I had to write at a time, I would tell them the truth, but as an experienced litigator. I could put together a brief in a few days, and I would be responsible for writing many briefs over the course of a short time. Now, however, I answer these questions as I would have when I was a first-year lawyer.^[206] I tell students that writing a brief took a lot of time, requiring close attention to every word. It was frustrating and challenging. Many times, my supervisors told me to not spend too much time—in order to save the client money—but to make sure everything was perfectly researched, analyzed, and written. These were not easy tasks. In sum, I stress my struggle rather than my success.

Further, the “new” me has started incorporating mistakes into my class presentations and even into my hypothetical problems. I am responsible for creating the hypothetical problems for our first-year class.^[207] Specifically, I am responsible for creating a hypothetical problem for the first semester of legal writing, which teaches students how to research and write an office memo, and a hypothetical problem for the second semester, which teaches students how to write a persuasive memorandum of points and authorities. Inevitably, no matter how many times we proof the materials, students will find errors. Like any other human would, I cringe and feel humiliated when others find an error in something I created, but I have started to embrace these mistakes for several reasons. First, while we, as educators, might want our students to strive for perfection, this is unrealistic because struggle is the goal, not perfection. Mistakes in the hypothetical problems can thus create valuable teaching opportunities with regard to the importance of reviewing the record carefully and knowing how to proceed in the face of a clear mistake in the record—something that happens in the real world as well.^[208] Second, much has been written about the problems that arise when lawyers cannot own up to their mistakes.^[209] So if we can create an atmosphere where law students feel comfortable with mistakes, perhaps we can proactively alleviate the accountability issue before these students begin practicing.

As mentioned in the Introduction, I have also incorporated “dumb questions” sessions into voluntary writing spaces, which occur before each major assignment is due. I inform my students that I will answer “dumb” questions during the first 20 minutes—the only rule being that each student must begin their question with “I have a dumb question, but . . . ?” Besides lightening the mood at a point in the course when students are stressed about turning in their assignment, there has never been a shortage of questions, and attendance at these voluntary sessions is robust. Thus, these sessions assure that students’ questions are answered, while also conveying the message that there is, in fact, no such thing as a “dumb” question. They make students comfortable and unafraid of asking what they think is a dumb question but, in reality, never is.

Finally, I now respond differently to incorrect answers. I used to quickly skip over a student’s incorrect answer and move on to a student who was more likely to supply the correct answer; otherwise, I assumed (wrongly) that students would embed an incorrect answer that would be hard to correct later.^[210] The other bad habit I used to have was to not pause long enough when students failed to respond to a question after a few seconds (it always seems longer during that silence), after which I would quickly provide the answer.^[211] I no longer do that. This is challenging because there is always so much material to cover, so it is a balancing act in terms of attempting to gain insight into one student’s misunderstanding while not losing the attention of other students who do understand the material. Nonetheless, I now probe further into an incorrect answer to try and discover why the student reached that result. Not only does this approach provide students with the message that they are not “dumb,” it also helps me understand where students are struggling, so I know to devote more time to that issue. And it may clarify a concept for other students with the same misunderstanding, but who did not feel comfortable to answer aloud, thereby further contributing to an environment where making mistakes is normalized.

C. Use Feedback that Promotes a Growth Mindset

Another critical area to promote a growth mindset is in the feedback we give students.^[212] Professors should not use phrases such as “you are a talented writer,” or “you really get this,” or “this is an excellent draft.” Instead, the focus should be on the effort expended towards and the success achieved in facing challenges. The praise should be about the process, as opposed to the product, which entails praising the student’s development, persistence to overcome obstacles, and ability to solve problems. As Dweck has explained, while praise alone can be dangerous for students, “we should wax enthusiastic about their strategies, not about how their performance reveals an attribute they are likely to view as innate and beyond their control.”^[213] Further, while problems will inevitably arise, professors should frame them as temporary setbacks that can be solved through practice and perseverance.^[214]

Many experts writing on this subject have suggested that word choice matters when trying to promote a growth mindset.^[215] For example, the word “yet” promotes an incremental growth mindset because it focuses on “what the student has done, what the student still needs to do, and [the] belief that [the student] is capable of doing it.”^[216] The word “and” serves a similar purpose and should be used instead of the word “but.”^[217] While “but” tends to diminish every word preceding it, the word “and” better conveys the idea that a student could be a talented legal writer and still need practice to master a certain skill—for example, extracting the key trigger facts and reasoning from cases.^[218] Another critical word is “opportunity.”^[219] This word helps signal to students that they can look forward to the challenge and excitement of working through an issue, rather than suffering from it.^[220]

Finally, the type of feedback matters—for example, formative assessment is more effective than summative assessment in reinforcing self-regulated learning.^[221] Self-regulated learning involves “learn[ing] how to learn,”^[222] and a self-regulated learner “approaches the learning process as something to be done for oneself rather than something that is done to the learner.”^[223] Summative assessment occurs “at the conclusion of a learning activity to judge the student’s ultimate level of attainment,”^[224] whereas “[f]ormative assessment occurs during the process of learning to obtain information to be used as feedback to help the instructor and student make adjustments to help improve the ultimate learning that takes place.”^[225] As some cognitive scientists have explained, “[F]ormative assessment is something that teachers do with students rather than to them.”^[226]

Of course, at the end of the semester, professors have no choice but to award a grade—a form of summative assessment/feedback. Up until that point, however, professors can work hard to avoid labeling a student in ways that are like grades. Interestingly, students sometimes work hard to get a professor to provide an informal summative assessment even for ungraded assignments, and some professors do inform students what grade they would have received had the assignment been graded. Indeed, my students often want to know what grade they would have received on an ungraded assignment, or for me inform them where they stand relative to their peers. I resist supplying an answer because that would promote a fixed mindset, and on ungraded assignments, I am not assessing how one student did versus others in the class.

The overall problem is that there is a disconnect between what works well in promoting an incremental growth mindset and the requirement to award a grade—which is not tied to a student’s mindset, strategies, or effort—at the end of a semester. The final grade is tied only to the student’s ultimate performance on a writing project relative to others in the class. And it is difficult to know exactly what to say to a student who is suffering distress from receiving a “bad” grade after working so diligently to master the legal writing concepts.

One suggestion for attempting to “credit failure” is to give points for testing different strategies.^[227] However, there are a few reasons why doing so would not work well in the legal writing classroom. First, while a grade in one legal writing class is not the be-all and end-all, it does signal to prospective employers how well a student writes. If we reward students for implementing strategies such as I rewrote the draft several times, I spent more than 100 hours on it, I used the reverse outlining approach, or I read my paper out loud to catch any awkward phrasing or other mistakes, or for other kinds of effort, in theory, this could result in a student receiving a top grade that is not reflective of the student’s actual ability to write. Second, law schools have resources—such as writing centers, academic success teams, teaching assistants, etc.—for students who are struggling, but if they believe based on a grade inflated by effort points that they are competent writers, they may be less likely to avail themselves of these resources. Third, outside of influencing their legal writing grade, a student’s inability to write well could also impact their grades in other classes, their ability to pass the bar exam, and their performance in practice. Thus, while awarding some portion of a final grade for utilizing learning strategies would be consistent with the goal of promoting a growth mindset, this seems unrealistic in light of the competing goals we have in evaluating students for the challenges of practicing law.

D. Peer-Review Exercises

Conducting peer-review exercises is another way to promote struggle and a growth mindset.^[228] In fact, one sample peer-review feedback worksheet for students in a non-law discipline is called “Growth Mindset Peer Feedback Tool.”^[229] While the form is designed for younger students, with some modifications, it also works well for law students. For example, the worksheet asks students to assess how they did on a recently taught skill. Then, in a section labeled “Struggle Zone,” it asks, “What did my peer find that I need to keep growing on in this work?” It even suggests sentence stems consistent with promoting a growth mindset for peer reviewers to use when providing feedback—for example, “I believe your current struggle zone is . . .” or “The next step you could take on this struggle zone is . . . .” As this tool demonstrates, peer review also allows students to witness first-hand the struggle that other students are undergoing; to this end, I have received feedback that the peer-review process is reassuring to students because they see that they are not alone in having difficulties mastering the concepts.

Although I have employed peer-review exercises in different ways, one method is to do so towards the beginning of the first semester to help teach how to write a case illustration. At this point, I have already introduced the concept, and students have written a case illustration for their first assignment. I instruct students to rewrite the case illustration after some further instruction, and they bring an unidentifiable copy of their own illustration to class. I then provide them with a rubric, so they know what to look for in evaluating another student’s illustration and in revising their own. After the students have had time to evaluate another student’s work, we discuss their findings as a class. This exercise allows students to see which strategies work well and which do not work well in terms of flow, analysis, and content.

Another form of peer review that I do is to take samples of student writing after the students have turned in a complete assignment—for example, the first draft of an office memo—and post different examples on the whiteboard or in a slideshow.^[230] I introduce the exercise by highlighting the struggle and challenge students faced in crafting part of the office memo. And as an example, I display four samples of a “hook” or thesis sentence (which is often a sub-rule), or four samples of a “thesis of application.” A thesis of application is the first sentence in the Application section of a nested CREAC. I then ask, “Which example is more right?”^[231] The idea behind asking the question this way is to make sure students understand that there is not one “right” method or one “perfect” sentence. To make students feel comfortable about providing an answer, I divide them up into pairs and tell them to think about the question, discuss their thoughts with their partner, and then share with the class (“think-pair-share” exercise).^[232] After they have had a chance to share their thoughts with the class, I ask them how they could improve the sentence. Because it is more difficult to identify whether a sentence is clear when it is your own sentence, this method of spotting issues allows students to evaluate the work from a more objective standpoint.

E. Reflection

At the law school where I teach, all of our legal writing professors use self-reflection tools. Many scholars agree that the reflection phase is not only key to long-term learning, but that it is also important in establishing grit and a growth mindset.^[233] In fact, if students are “not aware of the potential efficacy of a learning strategy, [they] might implement suboptimal strategies”; thus, awareness of “the effects of errors may be nearly as important as the effects . . . themselves.”^[234] Further, as discussed above, lack of awareness that generating errors can improve the learning process may prevent students from ultimately implementing a learning-by-errors strategy.^[235]

When law students engage in self-reflection, they lay the groundwork for continuing to do so once they are in practice, which is important for “invit[ing] improvement and learning from mistakes on several levels . . . .”^[236] Additionally, behavioral legal ethics scholar Catherine O’Grady states that when a student reflects on their work, they are geared toward a growth mindset.^[237] O’Grady also discusses cognitive science studies that show that those who are unskilled at a task have the “least accurate assessment of their own abilities . . . despite making one mistake after another . . . .”^[238] This is a form of “meta-ignorance”—the lack of skill causes an initial mistake and prevents one from recognizing it, thereby resulting in a detrimental positive feedback loop.^[239] Thus, reflection can help make students aware of their mistakes and put the burden back on them for their own learning process.^[240]

F. Use of Strategies to Challenge Students

Research has shown that educational strategies that “intentionally perplex learners” lead to better learning outcomes.^[241] These include strategies such as having students generate educated guesses without being told the answers at first, pre-testing,^[242] and introducing “desirable difficulties.”^[243] Desirable difficulties are “complex learning activities that require students to do the heavy lifting and build the skills necessary to be successful law students and future lawyers.”^[244] One mechanism to introduce desirable difficulties is “scaffolding,” an instructional device developed initially by Lev Vygotsky as a theory of learning.^[245] Vygotsky’s theory was that students learn best when the material is in the “zone of proximal development,” which is “the range of tasks a person cannot complete independently but can accomplish with appropriate support.”^[246] Within this zone, “instruction is most beneficial when tasks are slightly beyond the learner’s independent ability.”^[247] The idea is to make new material challenging, but not too difficult, and to ensure that students receive the assistance they need, but not so much that they are not engaged in the learning process.^[248] In other words, teachers need to channel their inner Goldilocks. This is akin to a wall under construction—at first, scaffolding supports the structure, but the scaffolding is gradually removed until the structure can stand on its own.

I employ this strategy in a variety of ways. For example, in the first couple weeks of the semester, students learn about statutes and statutory construction. They do not know, however, that their first writing assignment will involve a statutory interpretation issue regarding a notice of claim statute. The application exercise, dealing with the public records law in Arizona, provides the students with a case and a statute, and is designed to have them apply the knowledge they gained about statutory interpretation.^[249] First, they independently answer questions about the case before we go over it in class. Then, the application exercise introduces a new scenario with different facts, but those new facts are governed by the same statutory framework. The students work within teams to predict how a court would rule in the new scenario (which, unbeknownst to the students, is based on a real case decided after the one that they first analyzed).^[250] The teams then report back on the predicted outcome and the reasons behind their conclusions. Usually, the teams disagree with each other, and there are always some teams that don’t reach agreement. Finally, the exciting reveal: I hand out the real case from which I crafted the hypothetical. The students who made a correct educated guess are thrilled to know that they came to the right answer. But students who guessed wrong also feel validated because although the ultimate outcome was different from their prediction, the court’s reasoning and the issues it considered align with the students’ analysis.

Another example of this strategy is how I introduce the hypothetical problems that I create for our writing program. After students review the assignment, which consists of a memo from an “assigning attorney” and the “record,” but before doing anything else, I ask the students questions about the assignment. For example, one fall semester, the issue was whether a couple formed a common-law marriage under Iowa law. Therefore, I asked students to make educated guesses about how courts would view common-law marriages and why. After a robust discussion, which allowed students to make educated guesses, I provided them with the actual legal framework. Similarly, because the assigning memo had prompted them to address two of the three common-law marriage elements, I asked students their initial thoughts about how the memo should be organized—i.e., which element should go first, etc. At that point, I did not dictate how it should be structured because the goal is to get them thinking about strategy on their own.

Beyond this, I introduce other concepts, such as the need for point headings in an office memo, without an in-depth explanation. I ask students why they think point headings are preferable and what the goal of effective point headings is. I then ask students to think, pair, and share; and I show them samples of point headings from past office memos involving a different subject and different law. I ask them, “If you were a teacher and wanted to provide feedback to the student who wrote the heading, what advice would you give to improve the heading and why?” In this manner, I provide some limited information and instruction, let students grapple with the issues, and then—and only then—do I provide further assistance and instruction.

Conclusion

Mistakes are inevitable and key to the learning process. We need our students to feel comfortable with failure because the many famous sayings about mistakes, such as “there is no such thing as mistakes, only opportunities,” are not just sayings; researchers have proven them true. The legal writing classroom is an ideal place to learn from mistakes—in it, we are constantly interacting with our students through hands-on learning, and we form a close relationship with our students, their work, and their thought processes when we evaluate their writing and analysis. Incorporating learning from mistakes does not require a sea change in how we teach our students. With some minor modifications in how we give feedback, how we represent ourselves in the classroom, how we introduce challenges, how we respond to student questions, and how we ask students to reflect, we, as legal writing professors, can do our part to instill a growth mindset that allows our students to feel comfortable with learning from mistakes.

Appendix

Exercise 4: (Public Records)

The firm you are working for represents a newspaper seeking public records from a school district. Apparently, police arrested a maintenance supervisor at a high school accused of assaulting a minor, Jane Doe (her name has been kept anonymous), who was 14 at the time. The suspect was later indicted on charges of kidnapping, assault, and other crimes. Although the criminal trial has started, it is not yet complete. The events were the subject of several newspaper articles. A conservatorship was established for Jane Doe, the victim of the assault. In a conservatorship, a guardian or a protector is appointed by a judge to manage the financial affairs and/or daily life of another due to limitations (these can be physical, mental, or age (minor child or elderly person)). In this case, a conservatorship was established so that the minor child could pursue legal action against the person who assaulted her, as minors cannot sue in court. Those proceedings were sealed and thus closed to the public due to the nature of the criminal actions and Doe’s minority.

In Arizona, any party with a potential claim for damages against a public entity is required to serve a notice of claim (not file it in court but deliver it to the public entity) before filing a formal lawsuit. The notice must include a description of the facts that form the basis of the claim and the amount that, if paid by the entity, would settle the matter. The entity then has sixty days to accept the claim, after which it is deemed denied.

In accordance with A.R.S. § 12-821.01, Doe’s attorneys filed a Notice of Claim with the school district and, in light of the extraordinary circumstances, requested that its contents be considered confidential.

The newspaper employee has submitted a public records request for a copy of the Notice of Claim. In response, Doe filed papers asking the court not to release the notice of claim because Doe does not want the newspaper to obtain access to private information contained in it. Now, the newspaper wants to bring an action to obtain the Notice of Claim and wants to know if such an action will be successful.

Start by reading the following authorities in this order (the statutes appear at the end of this document, and the case is attached as a separate file):

A.R.S. § 39-121;
A.R.S. § 39-121.01 (B);
Griffis v. Pinal Cnty., 156 P.3d 418 (Ariz. 2007).

Answer these questions and be prepared to be called on in class to discuss your answers:

1. Has the Legislature defined “public records”?

2. What type of authority are these statutes?

3. What court decided the Griffis case? How does this court fit within the hierarchy in Arizona?

4. In Griffis, the court began its analysis by noting that, under Arizona law, “public records” is to be interpreted broadly and creates a presumption requiring the disclosure of public documents. What statutory red flag words do you think the Court relied upon in reaching that conclusion?

5. Did the court in Griffis indicate that the definition of public records is unlimited?

6. Is the word “presumption” contained anywhere in the statutory wording?

7. What was the key issue in Griffis?

8. Is that the same issue in our case? Why or why not?

9. How does the Griffis court define public records?

10. Do you think a notice of claim is more like or unlike the emails in Griffis and why?

11. Assuming the information requested is a public record, and the presumption regarding disclosure applies, what does the court in Griffis suggest needs to happen next to determine if it should be disclosed?

12. Your textbook refers to various types of tests, such as elements, factors, etc. How does the court in Griffis characterize this test?

13. How do you think this kind of test differs from an elements test?

14. Your client wants to know if the notice of claim is a public record. Would you advise your client that it is?

15. Assuming a court holds that it is a public record, do you think Doe will still argue it should not be produced? What will be Doe’s argument?

16. What mechanism does the court in Griffis suggest for determining whether a record is a public record?

17. Do you think a court might follow that same procedure to determine whether parts of the notice of claim should be withheld from the public?

§ 39-121. Inspection of public records

Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.

§ 39-121.01. Definitions

All officers and public bodies shall maintain all records, including records as defined in § 41-151.18, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from this state or any political subdivision of this state.

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1. See Kathryn Schulz, Being Wrong: Adventures in the Margin of Error 8 (2010) (“Witness, for instance, the difficulty with which even the well-mannered among us stifle the urge to say, ‘I told you so.’”).

2. A writing space is a session that I schedule before every major writing assignment is due to answer questions and to meet with students individually. These sessions are always voluntary.

3. Although the focus of this Article is on how mistakes can contribute to learning, the ability to admit to making a mistake and then learning from it is also crucial to successful lawyering. Stephen D. Easton & Julie A. Oseid, “And Bad Mistakes? I’ve Made a Few”: Sharing Mistakes to Mentor New Lawyers, 77 Alb. L. Rev. 499, 502 (2013–2014) (“Nobody can do anything of consequence in the practice of law without making mistakes . . . . Own your mistakes. You cannot learn from them unless you identify them.”); id. at 509 (“[M]istakes are inevitable for all of us flawed human beings, including the most caring and skilled of lawyers. . . . [R]ecovering and learning from your mistakes will help new lawyers develop into professionals. Mistakes, then, are not something to be avoided at all costs, but something to embrace when they happen despite our best human efforts to avoid them. They are career-boosters, not career-killers.”). See generally Catherine Gage O’Grady, A Behavioral Approach to Lawyer Mistake and Apology, 51 New Eng. L. Rev. 7 (2017) (analyzing from a behavioral perspective why lawyers dread making mistakes, exploring the science behind mistake acknowledgement, and recommending that lawyers apologize to their clients for lawyering mistakes). Thus, while my tips for instilling a growth mindset discussed herein are tailored to the legal writing classroom, they can, with some modification, also be implemented in other contexts.

4. See Joyce Lazier & Brett Gaul, The Cogito Arguments of Descartes and Augustine, in Just the Arguments: 100 of the Most Important Arguments in Western Philosophy 135 (Michael Bruce & Steven Barbone eds., 2011). Augustine’s argument proceeds: “I do not at all fear the arguments of the Academics when they say, What if you are mistaken? For if I am mistaken, I exist. He who does not exist clearly cannot be mistaken; and so, if I am mistaken, then, by some token, I exist.” Id. at 136 (quoting Augustine, The City of God Against the Pagans 484 (R.W. Dyson ed. & trans., 1998)).

5. Thomas Alva Edison, Oxford Dictionary of Quotations (Elizabeth Knowles ed., 8th ed. 2014). This version of the quote might be anachronistic. Edison’s true quote was more likely, “I have gotten a lot of results! I know several thousand things that won’t work.” Id.

6. Roger von Oech, A Whack on the Side of the Head: How You Can Be More Creative 158 (3d ed. 1998).

7. See, e.g., Kathy Caprino, 10 Lessons I Learned from Sara Blakely that You Won’t Hear in Business School, Forbes (Feb. 14, 2016, 1:20 AM), https://www.forbes.com/sites/kathycaprino/2012/05/23/10-lessons-i-learned-from-sara-blakely-that-you-wont-hear-in-business-school.

8. Ariel Salzer, Law Students and a New Age of Unattainable Perfection, Law School Toolbox (Mar. 8, 2016), https://lawschooltoolbox.com/law-students-and-a-new-age-of-unattainable-perfection [https://perma.cc/6R9Y-YYLD]. Law students are not alone. All human beings “love to be right,” and when someone realizes they have made an error, feelings of “shame” and “stupidity” ensue. O’Grady, supra note 3, at 15–16; Schulz, supra note 1, at 1 (“Unlike many of life’s other delights—chocolate, surfing, kissing—[being right] does not enjoy any mainline access to our biochemistry . . . . We can’t enjoy kissing just anyone, but we can relish being right about almost anything.”).

9. Jennifer Jolly-Ryan, Promoting Mental Health in Law School: What Law Schools Can Do for Law Students to Help Them Become Happy, Mentally Healthy Lawyers, 48 U. Louisville L. Rev. 95, 102–03 (2009).

10. Kerriann Stout, How Perfectionism Hurts Law Students, Above the Law (Feb. 26, 2018, 5:01 PM), https://abovethelaw.com/2018/02/how-perfectionism-hurts-law-students [https://perma.cc/RTX2-86H9].

11. Sue Shapcott, Sarah Davis & Lane Hanson, The Jury Is In: Law Schools Foster Students’ Fixed Mindsets, 42 L. & Psych. Rev.1, 12 (2018).

12. Id. at 20.

13. Jolly-Ryan, supra note 9, at 121 (citing Matthew M. Dammeyer & Narina Nunez, Anxiety and Depression Among Law Students: Current Knowledge and Future Decisions, 23 L. & Hum. Behav. 55, 70–71 (1999)).

14. Dammeyer & Nunez, supra note 13, at 70; see also Stout, supra note 10 (“When I put myself back in my 1L shoes, [perfectionism] fits almost all of my classmates.”). I served on the admissions committee at my own law school for two years. I thought at that time, and still believe, that there should be a more effective way to look beyond grades and test scores to assess a student’s resilience, which is so critical to student success in law school.

15. See Stout, supra note 10.

16. Kaci Bishop, Framing Failure in the Legal Classroom: Techniques for Encouraging Growth and Resilience, 70 Ark. L. Rev. 959, 969–70 (2018) (explaining that while perfectionism helps law students and lawyers achieve high standards, these traits also make people less willing to admit that they have made mistakes and more likely to suffer from the negative consequences of failure); see also Stout, supra note 10.

17. Emily Mofield, Megan Parker Peters & Sumita Chakraborti-Ghosh, Perfectionism, Coping, and Underachievement in Gifted Adolescents: Avoidance vs. Approach Orientations, 6 Educ. Scis. 21, at 2 (2016).

18. See generally Jill Suttie, Don’t Be So Quick to Stereotype Generations, Greater Good Mag. (Nov. 9, 2021), https://greatergood.berkeley.edu/article/item/dont_be_so_quick_to_stereotype_generations [https://perma.cc/3M8S-CAQD].

19. If someone is 24 today, they are likely a member of Generation Z, which is generally defined as people born between 1997 and 2012. See, e.g., Michael Dimock, Defining Generations, Where Millennials End and Generation Z Begins, Pew Rsch. Ctr. (Jan. 17, 2019), https://www.pewresearch.org/short-reads/2019/01/17/where-millennials-end-and-generation-z-begins [https://perma.cc/7NMG-ZDXT].

20. Zoomer, Merriam-Webster, https://www.merriam-webster.com/dictionary/Zoomer [https://perma.cc/R4YQ-FNSM] (last visited Nov. 25, 2025) (defining “Zoomer” as “a person born in the late 1990s or the early 2000s: a member of Generation Z”).

21. See, e.g., Megan Bess, Grit, Growth Mindset, and the Path to Successful Lawyering, 89 UMKC L. Rev. 493, 518–19 (2021) (“Millennial and Gen Z students now make up most of the populations of law school classrooms.”). Many law schools publish the ages of the students in their incoming class. For example, at the University of Arizona College of Law, where I teach, the average age of the 2022 incoming class was 25. A New School Year, Letter of the Law (James E. Rogers Coll. of L., Tucson, Ariz.), Aug. 24, 2022, https://lotl.arizona.edu/aug242022.htm [https://perma.cc/293C-CN9Q]. At the University of Kansas School of Law, as another example, the average age of the 2025 incoming class was 23.9, but the age range was 20–43. Class Profile, Univ. of Kan. Sch. of L., https://law.ku.edu/admissions/profile [https://perma.cc/L7W9-UWE3] (last visited Nov. 25, 2025).

22. Gabriel Kuris, Advice for Older Law School Applicants to Consider, U.S. News (Dec. 23, 2024, 2:18 PM), https://www.usnews.com/education/blogs/law-admissions-lowdown/articles/advice-for-older-law-school-applicants-to-consider.

23. See Easton & Oseid, supra note 3, at 503–09; see also Elizabeth M. Bloom, Creating Desirable Difficulties: Strategies for Reshaping Teaching and Learning in the Law School Classroom, 95 U. Det. Mercy L. Rev. 115, 117 (2018) (noting that Millennial students are often criticized for “caring more about grades than learning . . . and not taking responsibility to engage in the work needed to become excellent law students and lawyers”).

24. Easton & Oseid, supra note 3, at 505.

25. Id. at 505; see also Melissa H. Weresh, I’ll Start Walking Your Way, You Start Walking Mine: Sociological Perspectives on Professional Identity Development and Influence of Generational Differences, 61 S.C. L. Rev. 337, 361 (2009) (“[Millennials] are not interested in paying their dues, and they need more than monetary remuneration to be satisfied in their careers.”).

26. Bess, supra note 21, at 519 (citing Renee Nicole Allen & Alicia R. Jackson, Contemporary Teaching Strategies: Effectively Engaging Millennials Across the Curriculum, 95 U. Det. Mercy L. Rev. 1, 4 (2017)). Bess explains that “this happens in part because [Millennials] experienced an education in which self-esteem was emphasized and failure was not recognized.” Id. at 519 n.252.

27. Failure Drives Innovation, According to EY Survey on Gen Z, PR Newswire (Sep. 18, 2018, 9:00 AM), https://www.prnewswire.com/news-releases/failure-drives-innovation-according-to-ey-survey-on-gen-z-300714436.html [https://perma.cc/7TM6-R2V9].

28. Id.

29. Bess, supra note 21, at 519; see also Youki Terada, The Mistake Imperative—Why We Must Get over Our Fear of Student Error, Edutopia (Nov. 19, 2020), https://www.edutopia.org/article/mistake-imperative-why-we-must-get-over-our-fear-student-error [https://perma.cc/CU6E-NE7D] (“The fear of failure is deep-seated.”).

30. See, e.g., Jane Cooley Fruehwirth, Alex Xingbang Weng & Krista M. Perreira, The Effect of Social Media Use on Mental Health of College Students During the Pandemic, 33 Health Econ. 2229, 2247 (2024) (“[W]e find large negative effects of social media use on mental health 18 months into the pandemic when students had returned mostly to in-person instruction.”); Ailin Anto, Rafey Omar Asif, Arunima Basu, Dylan Kanapathipillai, Haadi Salam, Rania Selim, Jahed Zaman & Andreas Benedikt Eisengerich, Exploring the Impact of Social Media on Anxiety Among University Students in the United Kingdom: Qualitative Study, 7 JMIR Formative Rsch., June 16, 2023, at 9 (“[S]ocial media use was associated with greater anxiety levels among university students . . . .”).

31. Fruehwirth et al., supra note 30, at 2230 (“We find that social media use has no effect on depression and anxiety symptoms 4 months into the pandemic, but strong negative effects 18 months into the pandemic.”).

32. Anto et al., supra note 30, at 9 (“Students also mentioned . . . how social media was a large cause of stress through various mechanisms, which in turn caused them to be more anxious.”).

33. Id. at 8.

34. Active learning is a teaching method that encourages students to be engaged in their learning through discussion, investigation, and creation. Similar to the classes in this study, the legal writing classroom is generally an active-learning environment.

35. Carly A. Busch, Nicholas J. Wiesenthal, Tasneem F. Mohammed, Sjhauna Anderson, Margaret Barstow, Cydney Custalow, Jas Gajewski, Kristin Garcia, Cynthia K. Gilabert, Joseph Hughes, Aliyah Jenkins, Miajah Jonhson, Cait Kasper, Israel Perez, Brieana Robnett, Kaytlin Tillett, Lauren Tsefrekas, Emma C. Goodwin & Katelyn M. Cooper, The Disproportionate Impact of Fear of Negative Evaluation on First-Generation College Students, LGBTQ+ Students, and Students with Disabilities in College Science Courses, 22 CBE—Life Scis. Educ., Sep. 1, 2023, at 2.

36. Id. at 9; see also Victor D. Quintanilla & Sam Erman, Mindsets in Legal Education, 69 J. Legal Educ. 412, 423 (2020) (“[T]hreatening situational cues lead underrepresented minority students to worry about being judged in terms of stereotypes and about whether they belong, which may, in turn, undermine their executive functioning and the focus necessary for learning, ultimately leading to underperformance.”); id. at 424 (“[U]nderrepresented students who interpret critical feedback as biased or disrespectful may disengage with the course.”).

37. Busch et al., supra note 35, at 12.

38. Id.

39. Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?, 101 Nw. U. L. Rev. 1759, 1806 (2007).

40. Sean Darling-Hammond & Kristen Holmquist, Creating Wise Classrooms to Empower Diverse Law Students: Lessons in Pedagogy from Transformative Law Professors, 25 Berkeley La Raza L.J. 1, 11 (2015) (discussing Barnes, supra note 39).

41. Id.

42. Id.

43. Id. at 12.

44. Bishop, supra note 16, at 978 (“[I]n the first few months of law school, law students’ well-being, outlook, and motivation often decline significantly.”); see also Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal Educ. 112, 123 (2002) (“[T]he problems arising in law students are largely attributable to the process of legal education . . . .”); Carrie Sperling & Susan Shapcott, Fixing Students’ Fixed Mindsets: Paving the Way for Meaningful Assessment, 18 Legal Writing Inst. J. 39, 68 (2012) (“[L]aw students probably struggle to maintain an incremental mindset because the law-school environment almost certainly breeds a fixed mindset.” ).

45. See Bishop, supra note 16, at 978 (“[M]any students will receive some of the lowest grades they have ever received, courtesy of the mandatory curve that most classes have.”); id. at 978 n.121.

46. Bess, supra note 21, at 516.

47. Ian Ayres, Joseph Bankman, Barbara Fried & Kristine Luce, Anxiety Psychoeducation for Law Students: A Pilot Program, 67 J. Legal Educ. 118, 119 (2017); see also G. Andrew H. Benjamin, Alfred Kasniak, Bruce Sales & Stephen B. Shanfield, The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers, 11 Am. Bar Found. Rsch. J. 225, 246 (1986) (finding that as many as 40% of law students exhibit significant elevations in psychological distress symptoms); Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being, 22 Behav. Scis. & L. 261, 275 (2004) (“[L]aw students experience declining happiness and well-being during their first year in law school.”); Salzer, supra note 8 (“[Law s]tudents are afraid of getting it wrong, afraid of being embarrassed in class, and they don’t want to look bad to their peers, professors, or evidently even their tutors.”).

48. Cold-calling is a teaching method where a professor randomly selects a student to answer a question about the material being discussed, without asking for volunteers to speak up first. Over time, I have changed my approach to “warm-calling” instead of cold-calling. Under this approach, I tell students in advance which teams will be on call to answer questions in an upcoming class. However, even with this method, many students over the years have asked me not to call on them due to anxiety.

49. Ayres et al., supra note 47, at 118, 125.

50. See id. at 125–26.

51. Id. at 125.

52. Id. at 125–26; see also Robin S. Wellford-Slocum, The Law School Student-Faculty Conference: Towards a Transformative Learning Experience, 45 S. Tex. L. Rev. 255, 288 (2004) (“The Langdellian classroom in particular is so focused on revealing to students what they do not know, as opposed to what they do know, ‘that students tend to leave a traditional Langdellian classroom with a sense of failure, rather than a Socratic sense of accomplishment.’” (quoting Richard K. Neumann, Jr., A Preliminary Inquiry into the Art of Critique, 40 Hastings L.J. 725, 739 (1989) (emphasis in original))).

53. Jolly-Ryan, supra note 9, at 105.

54. See Cassandra L. Hill & Katherine T. Vukadin, Now I See: Redefining the Post-Grade Student Conference as Process and Substance Assessment, 54 How. L.J. 1, 5 (2010) (“Many students understandably have a very emotional reaction to a poor law school grade, to the point that their perception of work invested in the class and pertinence of work can determine the student’s level of effort going forward.”).

55. Bishop, supra note 16, at 982.

56. Elizabeth Adamo Usman, Making Legal Education Stick: Using Cognitive Science to Foster Long-Term Learning in the Legal Writing Classroom, 29 Geo. J. Legal Ethics 355, 391 (2016).

57. Bess, supra note 21, at 525.

58. Wellford-Slocum, supra note 52, at 264 (quoting Kurt M. Saunders & Linda Levine, Learning to Think like a Lawyer, 29 U. S.F. L. Rev. 121, 142 (1994)).

59. Id. at 269.

60. Id. at 288. Wellford-Slocum adds that following the review of a paper, “[t]he student conference can also be discouraging, particularly when the dialogue reveals that the student must rethink and revise significant portions of his paper.” Id. at 288–89.

61. Bishop, supra note 16, at 979; Sperling & Shapcott, supra note 44, at 39–40; see also Jesse C. Grearson, From Editor to Mentor: Considering the Effect of Your Commenting Style, 8 J. Legal Writing Inst. 147, 165 (2002) (cautioning that “[s]tudents may feel overwhelmed at the disparity between where they are where they will need to be as professional legal writers” and thus may feel inadequate and unworthy).

62. Sperling & Shapcott, supra note 44, at 39–40; Diana J. Simon, The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing 4 (2023).

63. Simon, supra note 62, at 4.

64. Diana Simon, Handling Criticism of Your Writing (After Taking Advil to Handle the Hurt), Ariz. Att’y, Nov. 2018, at 12 (emphasis added).

65. Naomi I. Eisenberger, Matthew D. Lieberman & Kipling D. Williams, Does Rejection Hurt? An fMRI Study of Social Exclusion, 302 Sci. 290–91 (2003). Although this study involved exclusion from a virtual ball-tossing game, it has implications for social rejection and loss in general. Id. at 292 (“Understanding the underlying commonalities between physical and social pain unearths new perspectives on issues such as why physical and social pain are affected similarly by both social support and neurological interventions, and why it ‘hurts’ to lose someone we love.”).

66. See Quintanilla & Erman, supra note 36, at 414 (“Over the past decade, considerable research has revealed that legal education saps law student well-being, elevating depression, anxiety, stress, mental illness, and alcohol abuse.”); Charity Scott, Mindfulness in Law: A Path to Well-Being and Balance for Lawyers and Law Students, 60 Ariz. L. Rev. 635, 640–43 (2018). Scott discusses the findings of the 2016 Survey of Law Student Well-Being in which over 3,000 students participated. Id. at 640. The study found that 17% of respondents screened positive for depression, 37% for anxiety, and “6% for having had serious suicidal thoughts in the past 12 months.” Id. at 641–42. While the discourse about the mental health of law students has burgeoned in recent years, it is not new. In 1957, researchers found that law students had significantly higher levels of “general anxiety” than did medical students. Leonard D. Eron & Robert S. Redmount, The Effect of Legal Education on Attitudes, 9 J. Legal Educ. 431 (1957).

67. Sperling & Shapcott, supra note 44, at 68 (“[L]aw students probably struggle to maintain an incremental mindset because the law-school environment almost certainly breeds a fixed mindset.”); Corie Rosen, The Method and the Message, 12 Nev. L.J. 160, 176 (2011) (“It is likely that four major features of the law school environment promote . . . the fixed mindset . . . : the ranking of first-year law students, awareness of large firm hiring preferences, peer-to-peer stigmatization, and professor feedback.”); Bishop, supra note 16, at 979 (“[O]nce students are feeling that they have failed, they are susceptible to getting caught in the negative cycle of guilt, shame, and blame or stalling out in a fixed mindset.”); Quintanilla & Erman, supra note 36, at 426 (“[L]aw school cultures and faculty may endorse fixed versus growth theories of intelligence, which may, in turn, affect law students’ beliefs.”); Bess, supra note 21, at 516 (“Unfortunately, the current law school model encourages students to adhere to a fixed belief of their intelligence.”). Sperling and Shapcott assessed the mindsets of a first-year law school class by asking the “students to complete a survey measuring their implicit theories of intelligence.” Sperling & Shapcott, supra note 44, at 58. Of the 100 students who participated, 25% displayed a fixed mindset; 25% displayed a growth mindset; and 50% were somewhere in between. Id. at 59.

68. Carol S. Dweck, Gregory M. Walton & Geoffrey L. Cohen, Academic Tenacity: Mindsets and Skills that Promote Long-Term Learning 5 (2014).

69. Id.; see also Bess, supra note 21, at 507–08 (discussing the differences between a growth mindset and fixed mindset); Bishop, supra note 16, at 976–77 (discussing Dweck’s mindset theory). While it would be convenient to place students in either a fixed or growth mindset bucket, Dweck has made clear that this is impossible: “Everyone is actually a mix of fixed and growth mindsets, and that mixture continually evolves with experience. A pure growth mindset doesn’t exist . . . .” Carol Dweck, What Having a “Growth Mindset” Actually Means, Harv. Bus. Rev. (Jan. 13, 2016), https://hbr.org/2016/01/what-having-a-growth-mindset-actually-means.

70. Usman, supra note 56, at 372.

71. Ayres et al., supra note 47, at 127 n.48 (citing Carol S. Dweck & Ellen L. Leggett, A Social–Cognitive Approach to Motivation and Personality, 95 Psych. Rev. 256 (1988)).

72. Id.

73. Carol S. Dweck, Self-Theories: Their Role in Motivation, Personality, and Development 42 (1999).

74. Id.

75. Dweck et al., supra note 68, at 5; see also O’Grady, supra note 3, at 32 (“[I]ndividuals who adopt a ‘growth mindset’ are more inclined to recognize their own mistakes and view them as learning opportunities than individuals who adopt a ‘fixed mindset,’ who are inclined to view mistakes as indications of their own incompetence or stupidity.”).

76. See Sperling & Shapcott, supra note 44, at 55.

77. Id. at 44 (“[W]e urge law schools and professors to incorporate the current research on mindsets when developing new assessment techniques and measures”).

78. See, e.g., Usman, supra note 56, at 357 (applying “Professors Roediger and McDaniel’s focus on teaching and learning that leads to long-term retention of information and skills” to legal education).

79. See Claudia Wallis, Why Mistakes Matter in Creating a Path for Learning, KQED (July 26, 2017), https://www.kqed.org/mindshift/48770/how-making-mistakes-primes-kids-to-learn-better [https://perma.cc/3KZT-RNWY] (recounting the history of scientific thought on mistake making).

80. Id.

81. Quian Zhang & Logan Fiorella, An Integrated Model of Learning from Errors, 58 Educ. Psych. 18, 18 (2022); accord Janet Metcalfe, Judy Xu, Matti Vuorre, Robert Siegler, Dylan Wiliam & Robert Bjork, Learning from Errors Versus Explicit Instruction in Preparation for a Test that Counts, Brit. J. Educ. Psych. 1, 2 (2024) (“The generation of errors, according to early learning theorists such as Bandura or Skinner, was assumed to have adverse consequences for learning. It was thought that the commission of errors would entrench the errors themselves and that the correction of such errors was problematic.”); cf. Nate Kornell, Matthew Jensen Hays & Robert A. Bjork, Unsuccessful Retrieval Attempts Enhance Subsequent Learning, 35 J. Experimental Psych.: Learning, Memory, & Cognition 989, 989 (2009) (“Errorless learning has had a long and influential history in psychology.”). Although now disfavored, errorless learning is still thought to be helpful for people with memory impairments such as Alzheimer’s disease. Barbie J. Huelser & Janet Metcalfe, Making Related Errors Facilitates Learning, but Learners Do Not Know It, 40 Memory & Cognition 514, 515 (2012).

82. Larry Cuban, Whatever Happed to the Self-Esteem Movement?, Larry Cuban on Sch. Reform and Classroom Prac. (Apr. 19, 2019, 1:00 AM), https://larrycuban.wordpress.com/2019/04/19/whatever-happened-to-the-self-esteem-movement [https://perma.cc/A834-G332].

83. Id.; see also Beth Ann Krier, Checking in with the State’s Task Force . . . : The Quest for Self-Esteem, L.A. Times (June 14, 1987, 12:00 AM), https://www.latimes.com/archives/la-xpm-1987-06-14-vw-6995-story.html [https://perma.cc/ZXH8-GPS2] (discussing the Task Force).

84. Dweck et al., supra note 68, at 2.

85. Id.

86. Carol S. Dweck, Caution—Praise Can Be Dangerous, 23 Am. Educator 1 (1999).

87. See Claudia M. Mueller & Carol S. Dweck, Praise for Intelligence Can Undermine Children’s Motivation and Performance, 75 J. Personality & Soc. Psych. 33, 49 (1998) (“[P]raise for high ability after success appeared to lead children to believe intelligence to be a fixed trait whose level was measured from their performance on academic tasks.”).

88. Id. at 35–36.

89. Id. at 36.

90. Id.

91. Id.

92. Id.

93. Id. at 37.

94. Id. at 48.

95. See Metcalfe et al., supra note 81, at 22 (discussing James W. Stigler, Patrick Gonzales, Takako Kawanaka, Steffen Knoll & Anna Serrano, Nat’l Ctr. for Educ. Stat., The TIMSS Videotape Classroom Study: Methods and Findings from an Exploratory Research Project on Eighth-Grade Mathematics Instruction in Germany, Japan, and the United States (1999)).

96. See Stigler et al., supra note 95, at 1; see also Harold W. Stevenson & James W. Stigler, The Learning Gap: Why Our Schools Are Failing and What We Can Learn from Japanese and Chinese Education 13 (1994); Janet Metcalfe, Learning from Errors, 68 Ann. Rev. Psych. 465, 467 (2017).

97. See Stigler et al., supra note 95, at 9–20. The researchers also studied German classrooms, but the comparison between the American and Japanese classrooms is most relevant to this Article.

98. Id. at 1.

99. See id. at 134–35; Metcalfe, supra note 96, at 467.

100. Stigler et al., supra note 95, at 134; Metcalfe, supra note 96, at 468.

101. Stigler et al., supra note 95, at 135–36; Metcalfe, supra note 96, at 468.

102. See, e.g., Metcalfe, supra note 96, at 468 (“In comparison with approaches that stress error avoidance, making training more challenging by allowing false starts and errors followed by feedback, discussion, and correction may ultimately lead to better and more flexible transfer of skills to later critical situations.”). Subsequently, Stigler has made clear that many other factors besides teaching methods contribute to Japanese students’ high mathematics success levels; for example, “motivational factors may be more important.” James W. Stigler & James Hiebert, Closing the Teaching Gap, 91 Kappan 33 (2009).

103. Metcalfe et al., supra note 81, at 2; accord Huelser & Metcalfe, supra note 81, at 524–25 (“[W]hen the materials are related . . . generating an error and receiving corrective feedback is much better for learning than is simply studying.”); Metcalfe, supra note 96, at 467 (“[A] fear of errors typically diverts learning from highly productive generative strategies, and an error avoidance strategy is even more pernicious because generating errors—as long as corrective feedback is given—is actually beneficial to learning.”).

104. Usman, supra note 56, at 363.

105. See Bloom, supra note 23, 127–28.

106. Stigler & Hiebert, supra note 102, at 34 (“[I]t appears that there is not one way to teach effectively, but many.”).

107. Id.

108. Id.

109. Dweck et al., supra note 68, at 2. Furthermore, scholars in the legal education arena have relied on these studies when concluding that it is important to produce self-regulated learners who can “actively construct understanding instead of passively receiving knowledge.” Bloom, supra note 23, at 117; id. at 121 (quoting Huelser & Metcalfe, supra note 81, at 524); accord Sperling & Shapcott, supra note 44, at 47 (citing and discussing Dweck’s work before concluding that it “sheds light on many of the beliefs and behaviors we see in law students”).

110. It is beyond the scope of this Article to conduct a literature review of every study done in this area, as there are far too many. Recently, however, two educational psychologists published a paper in which they “synthesize[d] representative research related to learning from errors in cognitive psychology and educational psychology to understand what and how students learn from errors.” Zhang & Fiorella, supra note 81, at 18. For Zhang and Fiorella’s synthesis, see id. at 22–24. For another summary of “theories of why errors enhance learning,” see Metcalfe, supra note 96, at 477–79.

111. See Metcalfe et al., supra note 81, at 3.

112. Id.

113. Id.

114. Id. at 4.

115. Id.

116. Id. at 3.

117. Id. at 4.

118. Id. at 6 fig. 2. However, the benefits varied greatly across teachers in the LFE condition. Id. On this point, the researchers found that providing only correct feedback on errors is not enough. Id. at 11.

119. Id. at 12.

120. Id. (discussing Stigler et al., supra note 95). The researchers did note, however, some limitations in the study, such as using only four teachers and highly motivated student participants. Id.

121. See Kornell et al., supra note 81, at 990 (“[U]nsuccessful recall attempts might enhance learning if they engage active learning processes and enhance future encoding. Retrieval failures might also impede learning if they strengthen inappropriate retrieval routes or otherwise reinforce errors.”).

122. Id. at 993.

123. Id.

124. Id.

125. Id. at 994 fig. 4.

126. Metcalfe, supra note 96, at 470.

127. Id.

128. Huelser & Metcalfe, supra note 81, at 523; see also Phillip J. Grimaldi & Jeffrey D. Karpicke, When and Why Do Retrieval Attempts Enhance Subsequent Encoding?, 40 Memory & Cognition 505, 512 (2012) (“The effects of attempting retrieval depend not only on the relatedness of the materials and the temporal context of the retrieval and encoding events but also on the nature of the retrieval process[] . . . .”).

129. Metcalfe, supra note 96, at 472.

130. Id. at 473.

131. Brady Butterfield & Janet Metcalfe, The Correction of Errors Committed with High Confidence, 1 Metacognition Learning 69, 75–76 (2006).

132. Id. at 78 fig. 1.

133. Id. at 77.

134. Id. at 79.

135. Id.

136. E.g., Janet Metcalfe, Brady Butterfield, Christian Habeck & Yaakov Stern, Neural Correlates of People’s Hypercorrection of Their False Beliefs, 24 J. Cognitive Neuroscience 1571, 1579–80 (2012).

137. Id. at 1574.

138. Id. at 1574–75.

139. Metcalfe, supra note 96, at 473–74 (discussing the findings in Metcalfe et al., supra note 136, at 1579–80).

140. See Huelser & Metcalfe, supra note 81, at 524 (“[P]articipants were not aware that error-generation was helpful for remembering related word pairs.”).

141. See supra notes 121–125 and accompanying text.

142. Huelser & Metcalfe, supra note 81, at 517–18. Note, however, that “error generation enhanced retention for related materials, [but] it did not enhance performance for unrelated materials.” Id. at 518.

143. Id. at 519.

144. Id.

145. Metcalfe, supra note 96, at 470.

146. Usman, supra note 56, at 361; see also Zhang & Fiorella, supra note 81, at 23 (“[E]rror generation prepares students for subsequent information encoding and integration by activating, reorganizing, and differentiating students’ prior knowledge.”); id. at 21 (describing how in one study, “students who solved problems before instruction perceived more knowledge gaps than students who received instruction first. Such awareness and identification of knowledge gaps is important because students need to realize flaws in their knowledge and skills before they can repair them.”).

147. E.g., Metcalfe, supra note 96, at 480.

148. Id.

149. E.g., Bess, supra note 21, at 494 (“Grit and growth mindset are particularly important to cultivating success in the generations of students in law schools today.”); Heather D. Baum, Inward Bound: An Exploration of Character Development in Law School, 39 U. Ark. Little Rock L. Rev. 25, 50 (2016) (“There is a relationship between grit and mindset because ‘character grows out of mindset[]’ . . . .” (quoting Carol S. Dweck, Mindset: The New Psychology of Success 93 (2006))); Usman, supra note 56, at 377–80 (discussing grit and growth mindset).

150. Angela L. Duckworth, Christopher Peterson, Michael D. Matthews & Dennis R. Kelly, Grit: Perseverance and Passion for Long-Term Goals, 92 J. Personality & Soc. Psych. 1087, 1087 (2007).

151. Dweck et al., supra note 68, at 13; see also Beverly Jaeger, Susan Freeman, Richard Whalen & Rebecca Payne, Successful Students: Smart or Tough? 4–6 (June 20, 2010) (unpublished manuscript) (Am. Soc’y for Eng’g Educ. 2010 Ann. Conf. & Exposition Paper) (discussing studies showing that gritty students outperformed their less gritty peers and establishing an association between grit and educational attainment). Despite the literature demonstrating the importance of grit, some have been critical of the singular focus on grit because, among other reasons, “persistence can be detrimental” when someone stubbornly refuses to change course when they should; the scale that researchers have created to measure grit values perseverance more so than passion; and the grit research “focuses too much on the relationship between grit and academic achievement . . . .” Emily Zimmerman & Leah Brogan, Grit and Legal Education, 36 Pace L. Rev. 114, 121–22 (2015). Grit also does not account for other factors, like systemic inequalities, which affect student achievement. Id. at 122.

152. Duckworth et al., supra note 150, at 1087–88.

153. Usman, supra note 56, at 379.

154. Bess, supra note 21, at 509.

155. See Dweck et al., supra note 68, at 12.

156. Id.

157. Id.

158. Marcus Crede, What Shall We Do About Grit? A Critical Review of What We Know and What We Don’t Know, 47 Educ. Researcher 606 (2018); Jill Barshay, Research Scholars to Air Problems With Using “Grit” at School, The Hechinger Rep. (Mar. 11, 2019), https://hechingerreport.org/research-scholars-to-air-problems-with-using-grit-at-school [https://perma.cc/6FQ6-PYCZ].

159. Barshay, supra note 158.

160. Crede, supra note 158, at 608, 610.

161. Id.

162. The Hidden Cost of Grit, Vanderbilt Univ. News (Apr. 20, 2016), https://news.vanderbilt.edu/2016/08/29/the-hidden-cost-of-grit [https://perma.cc/UA6H-PMUM] (discussing a paper that argues that focusing on grit for Black college students produces mental wear-and-tear that contributes to a host of psychological and physical ailments).

163. Bettina L. Love, ‘Grit Is in Our DNA’: Why Teaching Grit is Inherently Anti-Black, Educ. Week (Feb. 12, 2019), https://www.edweek.org/leadership/opinion-grit-is-in-our-dna-why-teaching-grit-is-inherently-anti-black/2019/02 [https://perma.cc/4CRM-NXRN].

164. Id.

165. See Zimmerman & Brogan, supra note 151, at 118 (“[G]rit is understudied in the context of legal education.”).

166. E.g., Jaeger et al., supra note 151, at 13 (finding that a sample of first-year engineering students at Northeastern University had “grit levels commensurate with others from previous studies—or slightly higher in some cases”).

167. Zimmerman & Brogan, supra note 151, at 142 (“The results of our research project did not support our hypothesis that grit would be positively correlated with law school GPA . . . .”). This finding was inconsistent with those of other researchers such as Angela Duckworth, who found a positive correlation between grit and undergraduate GPA. Duckworth et al., supra note 150, at 1093 (“Gritty students outperformed their less gritty peers: Grit scores were associated with higher GPAs . . . .”). However, they were consistent with research conducted by Milana Hogan in an unpublished Ph.D. dissertation. There, Hogan did not find a statistically significant correlation between grit and law school or undergraduate GPA. Milana Lauren Hogan, Non-Cognitive Traits that Impact Female Success in BigLaw 66 (2013) (Ph.D. dissertation, University of Pennsylvania) (on file with the University of Pennsylvania). Similarly, in another study, researchers found that law students’ character strengths “were positively related to undergraduate GPA, [but] they were negatively related to law school GPA.” Margaret L. Kern & Daniel S. Bowling III, Character Strengths and Academic Performance in Law Students, 55 J. Rsch. Personality 25, 28–29 (2015). Although the researchers measured many character traits, some were similar to grit, such as “persistence,” “self-regulation,” and “zest.” Id. at 25.

168. Zimmerman & Brogan, supra note 151, at 134–36.

169. Id. at 136–37.

170. Id. at 142. Interestingly, the female survey participants “reported more grit than the male participants.” Id.

171. See id. at 144.

172. Id.

173. Id.

174. Id. at 137 n.98, 154.

175. Id. at 154.

176. Id. at 155. In concluding, the researchers posed an excellent question raised by their findings: “[W]hy isn’t grit related to law school GPA, and should law school assessment be rewarding grittier students?” Id. at 145.

177. Baum, supra note 149, at 39.

178. Id. at 32. The surveys sent to LWI members generated 137 responses, and the surveys sent to practitioners generated 49 responses. Id. LWI is a “nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing.” About LWI, Legal Writing Inst., https://www.lwionline.org/about [https://perma.cc/BE9M-3MFM] (last visited Dec. 24, 2025).

179. Baum, supra note 149, at 43.

180. Id. at 48.

181. Id. at 44.

182. Id. at 44.

183. Id. at 45.

184. Id. at 65.

185. See Bess, supra note 21, at 515–17.

186. Id. at 517.

187. Dweck et al., supra note 68, at 2.

188. Baum, supra note 149, at 43 (alterations in original) (quoting Carol S. Dweck, Can Personality Be Changed? The Role of Beliefs in Personality and Change, 17 Current Directions Psych. Sci. 391, (2008)).

189. Peter C. Brown, Henry L. Roediger III & Mark A. McDaniel, Make It Stick: The Science of Successful Learning 179 (2014).

190. Id.

191. “Effortful learning” is “when you try hard and learn something new, the brain forms new connections, and these connections, over time, make you smarter.” Id.

192. Id.

193. Id.

194. Id. at 179–80.

195. Id.

196. Bloom, supra note 23, at 117. One study Bloom discusses showed that “providing formal reasoning training to students in preparation for the LSAT enabled the brain to ‘actively alter the neural pathways through mental exercises and continue to increase its problem-solving potential.’” Id. (quoting Susan Stuart & Ruth Vance, Bringing a Knife to the Gunfight: The Academically Underprepared Law Student & Legal Education Reform, 48 Val. U. L. Rev. 41, 78–79 (2013)).

197. See, e.g., Bess, supra note 21, at 537 (“Law schools can promote grit and growth mindset at an institutional and course level.”); Bloom, supra note 23, at 151 (“We must convince law students to embrace desirable difficulties by creating active learning opportunities that motivate them and teaching them that embracing metacognition will help them become successful law students and lawyers.”); Bishop, supra note 16, at 1006 (“The techniques identified in this Article are designed to help law students create the habits of mind and develop resilient patterns of thought and practice that will enable them to be more effective and engaged lawyers.”); Quintanilla & Erman, supra note 36, at 436 (“[T]he burden for achieving a growth mindset should not fall solely or primarily on students. Law schools and faculty are in the better position to intervene, and their choice to endorse a growth mindset versus a fixed mindset is likely to have a far-reaching impact.”); Usman, supra note 56, at 391–97.

198. Quintanilla & Erman, supra note 36, at 421.

199. Bishop, supra note 16, at 960.

200. Id. at 985.

201. At the school where I teach, we are fortunate because we meet with our students for the first time during orientation week (before classes have started). Accordingly, we can use that first class as an orientation to legal writing without having to make the students do an assignment on which we would then need to focus.

202. See Bess, supra note 21, at 532.

203. Not naming the concepts of growth mindset, failure, grit, etc. is a mistake because Dweck has shown that explicitly teaching students about effortful learning and a growth mindset is integral in producing those outcomes. See supra notes 189–195 and accompanying text. I also freely admit that over the years I have had to work on correcting my own mindset with regard to believing that there are “talented” and “not-so talented writers.” See Sperling & Shapcott, supra note 44, at 73 (“If professors believe that students fall into a simple dichotomy of good and bad writers, the classroom and feedback will probably reflect that.”)

204. See Sperling & Shapcott, supra note 44, at 81–83 (discussing the importance of having mentors such as teaching assistants who can demonstrate an incremental mindset).

205. Bess, supra note 21, at 530 (“Faculty embrace and model struggle and failure when they are candid about their own struggles and setbacks.”); Bishop, supra note 16, at 990 (“[Professors] can create a safe space for and lower the stakes of failure by sharing failure.”); Zimmerman & Brogan, supra note 151, at 147 n.122 (“[L]aw professors can try to normalize challenge and effort.”); Baum, supra note 149, at 61 (advocating for professors to “shar[e] stories about overcoming failure and understanding legal writing”).

206. See Easton & Oseid, supra note 3, at 536 (“When you answer a question as a lawyer, try to remember to answer it from the perspective of the person asking the question, not from your perspective.”).

207. See Diana J. Simon, Focused and Fun: A How-to Guide for Creating Hypotheticals for Law Students, 19 Scribes J. Legal Writing 161, 161 (2020).

208. Andrew Henderson, “Mistakes” Teach Law Students Real-World Skills Responding to Ambiguity, The Mermaid’s Purse (Aug. 18, 2021), https://the-mermaids-purse.blog/2021/08/18/mistakes-teach-law-students-real-world-skills-responding-to-ambiguity (private site, requires access request) (“Embedding incomplete, incorrect or simply wrong information into tutorial problems can create some valuable teaching moments . . . .”). While the goal of creating a “perfect” hypothetical is sensible, “it creates another problem: by removing all but the most carefully planned doubt from problem questions, we have taught law students to assume (almost) perfect information in every problem, even outside the law school.” Id. But mistakes and ambiguity are “part of the real-world of legal practice,” so students should be exposed to them while still in school. Id.

209. See, e.g., O’Grady, supra note 3, at 8–9 (“Behavioral legal ethics . . . posits that psychological factors, which often occur outside the conscious awareness of a legal decision maker, may produce decision-making errors that may ultimately result in unethical conduct.”); Easton & Oseid, supra note 3, at 501 (“If you cannot learn from your mistakes, you cannot improve. If you cannot improve, there is no point in practicing law.”); Henderson, supra note 208 (stating that failure to acknowledge mistakes leads law students to wrongly assume “perfect information in every problem”).

210. As one professor has explained, when an educator is met with the wrong answer, they can “simply ignore[] the answer, dismiss[] it out of hand, or call[] on another student . . . .” Rosen, supra note 67, at 184. Such actions can function as a silent signal of disapproval and “can defeat or embarrass the student and inadvertently communicate to the student (or even to the class) that the student is not smart or not smart enough.” Bishop, supra note 16, at 994–95; see also Colin Seale, The Magic of Mistakes: 4 Ways to Boost Critical Thinking with Mistake Analysis, Cult of Pedagogy (Apr. 18, 2021), https://www.cultofpedagogy.com/magic-of-mistakes [https://perma.cc/68KV-MMG5] (suggesting the use of “probing questions to grapple with ‘good’ mistakes in real time” instead of quickly “dismiss[ing] a student’s answer as totally off-base”).

211. Providing solutions before students have the chance to solve the problem limits their choices, which hampers the learning process.

212. See Bishop, supra note 16, at 994 (“Receiving and responding to critical feedback is essential to learning, improving, and being a professional.”); Bess, supra note 21, at 533 (“Feedback aimed to help students become self-regulated learners and evaluate their work helps them to better think critically and solve problems.”); Baum, supra note 149, at 61 (“Another part of the messaging component of the growth mindset involves assignments and giving feedback.”); Jaeger et al., supra note 151, at 15 (“We are definitely focused on positive feedback for perseverance, for overcoming setbacks, for showing grit and determination.”).

213. Dweck, supra note 86, at 8.

214. See Bess, supra note 21, at 533 (“Feedback is especially helpful for students when it frames problems as temporary . . . , specific . . . , and hopeful . . . .”).

215. E.g., Bishop, supra note 16, at 995 (“By simply shifting the language used, the professor . . . can . . . communicate that while the student’s particular answer or thinking on this issue is deficient, the student can . . . work to provide a fuller and more effective answer.”); Bess, supra note 21, at 533 (“Simple word choices . . . matter.”).

216. Bishop, supra note 16, at 996.

217. Id. at 998.

218. See id. at 998–99.

219. Id. at 998.

220. See id. (“It encompasses optimism, options, and forward-thinking; it also has an element of excitement and adventure.”). Dweck and colleagues have also emphasized that words like “should,” which connote control, are less effective in promoting student autonomy. Dweck et al., supra note 68, at 27. In one experiment in which college students learned about recycling, some of the students were taught with autonomy-supportive phrases like “you might” or “if you choose,” and some were taught with controlling phrases like “you should” or “you must.” Maarten Vansteenkiste, Joke Simons, Willy Lens, Kennon M. Sheldon & Edward L. Deci, Motivating Learning, Performance, and Persistence: The Synergistic Effects of Intrinsic Goal Contents and Autonomy-Supportive Contexts, 87 J. Personality & Soc. Psych. 246, 248 (2004). Upon examination of the recycling content, the researchers found that the students taught with the autonomy-supportive language performed better. Id. at 251.

221. Bloom, supra note 23, at 130; Usman, supra note 56, at 393–94.

222. Usman, supra note 56, at 370 (internal quotes omitted).

223. Charles B. Sheppard, The Grading Process: Taking a Multidimensional, “Non-Curved” Approach to the Measurement of a First-Year Law Student’s Level of Proficiency, 30 W. State U. L. Rev. 177, 192 (2003).

224. Bloom, supra note 23, at 129.

225. Id. at 129–30.

226. E.g., Metcalfe et al., supra note 81, at 12.

227. Bishop, supra note 16, at 994.

228. See Baum, supra note 149, at 53; id. at 53 n.198 (“[P]eer editing exercises [teach] students . . . to exercise positive character traits such as . . . self-regulation . . . .”). Furthermore, because in self-directed learning, “learners [are] actively involved in shaping their own learning processes,” the work involved in peer assessment fits this goal. Marjo van Zundert, Dominique Sluijsmans & Jeroen van Merrienboer, Effective Peer Assessment Processes: Research Findings and Future Directions, 20 Learning & Instruction 270, 270 (2010).

229. Growth Mindset Peer Feedback Tool, Model Teaching (Nov. 19, 2019), https://www.modelteaching.com/education-resource-item/listing/growth-mindset-peer-feedback-tool [https://perma.cc/67BF-D9GF].

230. I used to use actual student examples, which I anonymized. But after receiving feedback from a couple of students who recognized their own work and felt embarrassed (even though no one else knew it was theirs), I began heavily editing the sentences—while still including the same mistakes—so that no student’s work was quoted directly.

231. See Colin Seale, Thinking Like a Lawyer: A Framework for Teaching Critical Thinking to All Students 71 (2020). This is a “flexible method of infusing critical thinking into problem solving by allowing thinkers to evaluate the relative ‘rightness’ of two or more incorrect solutions.” Id.

232. See Think-Pair-Share, The Tchr. Toolkit, https://www.theteachertoolkit.com/index.php/tool/think-pair-share [https://perma.cc/AV33-C9EH] (last visited Dec. 1, 2024).

233. E.g., Bess, supra note 21, at 536 (“Reflection allows students to see their progress and success and see the path to learning material they have yet to master. This practice promotes both grit and growth mindset.”); Usman, supra note 56, at 372 (“It is perhaps unsurprising to most people that this process of self-regulated learning, including the critical component of reflection, is a key to long-term learning.”); Baum, supra note 149, at 53 (“Various exercises, including self-reflections, can be used to develop character traits . . . .”).

234. Huelser & Metcalfe, supra note 81, at 514.

235. See supra notes 140–145 and accompanying text.

236. O’Grady, supra note 3, at 33.

237. See id.

238. Id. at 19.

239. See id.

240. See Bloom, supra note 23, at 133 (“The most effective kind of feedback puts the burden back on the students . . . .”).

241. See Sidney D’Mello, Blair Lehman, Reinhard Pekrun & Art Graesser, Confusion Can Be Beneficial for Learning, 29 Learning & Instruction 153, 167 (2014).

242. Interestingly, although all of the legal writing classes at my law school administer a multiple-choice quiz one day each week, Elizabeth Bloom has opined that multiple-choice questions, which “require students to passively pick the correct answer from a set of alternatives with no role in constructing the answers,” do not work to create a growth mindset. Bloom, supra note 23, at 137. Instead, she proposes that students create their own multiple-choice questions and answers. Id. at 141.

243. Id. at 128.

244. Id. at 120.

245. See Saul McLeod, Vygotsky’s Zone of Proximal Development, Simply Psych. (Aug. 9, 2024) https://www.simplypsychology.org/zone-of-proximal-development.html [https://perma.cc/Z53T-TWSL].

246. Id.

247. Id.

248. See generally Christine M. Venter, Analyze This: Using Taxonomies to “Scaffold” Students’ Legal Thinking and Writing Skills, 57 Mercer L. Rev. 621 (2006).

249. See Appendix, infra.

250. See Phoenix Newspapers, Inc. v. Ellis, 215 Ariz. 268 (2007).