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Cognitive (Over)Load in First Year Legal Research Instruction

The research and analysis that we teach our students are processes, but when our students’ grades are based primarily on the documents they produce, students can have a difficult time internalizing those processes. This is partially due to what cognitive psychologists refer to as cognitive load. Cognitive psychologists define cognitive load as “the mental burden that managing working memory imposes on a person.”[1] 

According to a 2015 law review article on cognitive load and legal writing:

"Cognitive load theorists opine that the process of learning complex new information can exhaust a student’s finite working memory, perhaps capable of holding as few as two or three elements at a time. The complexity of the ‘element interactivity’—the interaction between various elements of the material to be learned—alters cognitive load. Thus, the complicated process of analyzing legal problems, researching their possible solutions, and communicating that analysis in writing can overwhelm students’ working memories . . . ."[2]

The article describes three types of cognitive load:
  1. Intrinsic cognitive load: This is the mental burden essential to learning the materials at hand. 
  2. Extraneous cognitive load: This is the mental burden that is not intrinsic to learning the material at hand. It is often obstructs learning and is caused by poor instructional design.
  3. Germane cognitive load: A sub-type of intrinsic cognitive load, it's the mental burden that memory uses to develop the structures of long-term memory.[3]
As instructors, then, our job is to optimize learning by reducing the extraneous cognitive load. In first year legal research and writing courses, students may struggle to learn due to the broad variety of tasks being taught: research, writing, analysis, oral advocacy, negotiation, etc. Because students have so many tasks splitting their focus, they tend to focus on the product that is most immediate—usually some sort of graded writing assignment. This hampers their ability to learn the analytical process that is research, as they rush to simply gather sources they're "supposed to find" for their writing assignments. Students struggle to absorb the research process and the analysis that is critical to successful researching because their working memories are busy trying to communicate the information from the sources they have located, on which the majority of their grade will be determined. Additionally, even though we know legal research differs from the research most students have done earlier in their academic careers, the research in their first-year courses may feel the most familiar to them out of all the new skills they are learning. This may cause students to minimize the need to focus on legal research since they are struggling with so many even more foreign skills--especially if the importance of research skills is not emphasized in the class.

As research instructors, we must explain the import of giving students opportunities two distinct types of practice: 1) exercises to practice their bibliographic research skills—how to locate certain types of materials, separate from engaging in any analysis; and 2) assignments to practice the analytical process inherent to research without worrying about producing a written document. This might require a re-working of the curriculum. In most first year skills courses, we see two scenarios. In the first, instructors incorporate the bibliographic type of practice exercises because students must first and foremost know how to locate different types of materials. They don’t have time to focus on research analysis skills separate from students' writing assignments, causing students to struggle with the analytical side of research as they research their first open memo. In the second, instructors attempt to merge the two types of practice into one assignment, which may be too much for students to absorb cognitively. This may cause students to focus more on research as a gathering skill rather than as an analytical skill. It may be challenging to fit multiple research assignments into an already packed curriculum due to the overabundance of topics covered in 1L skills courses. But, given that studies show both that new attorneys will spend a considerable amount of their time conducting legal research and that their employers are unhappy with where their research skills currently stand, it’s time to advocate for making more room for research instruction. Including exercises that allow students to process both sets of researching skills separately will ultimately produce the kinds of researchers prospective employers want to hire.

[1] Terri L. Enns & Monte Smith, “Take a (Cognitive) Load Off: Creating Space to Allow First-Year Legal Writing Students to Focus on Analytical and Writing Processes,” 20 J. Legal Writing Institute 109, 110 (2015).
[2] Id. at 111.
[3] Id.

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