Millemann, M A; Schwinn, S D --- "Teaching Legal Research and Writing with Actual Legal Work: Extending Clinical Education into the First Year" [2006] LegEdDig 37; (2006) 14(Spec Ed) Legal Education Digest 8

Teaching Legal Research and Writing with Actual Legal Work: Extending Clinical Education into the First Year

M A Millemann & S D Schwinn

(2006) 14(Spec Ed) Legal Education Digest 8

U Maryland L Sch, Legal Studies Research Paper, No. 2006–7, pp 440–499

In this article, we advocate using actual legal work to teach legal research and writing (LRW) courses, including first-year courses. By ‘actual legal work’ we mean work that is part of an ongoing or planned lawsuit, transaction, negotiation or other form of legal representation. We focus on litigation, although what we propose applies to non-litigation projects as well.

We envision a continuum of possible hybrid courses. Here are some possible points on that continuum: (1) A LRW course taught by a LRW teacher in which assignments are based on actual legal work drawn from a clinic or outside public law firm (2) A LRW course co-taught by a LRW and clinical teacher in which the assignments are based on actual legal work from the clinical teacher’s separate clinical course (3) A course that includes clinical teacher, in which the assignments are based on actual legal work from the integrated clinical component or an outside public or private law firm (4) A clinical course taught by a clinical teacher that includes a LRW component, for example, an appellate advocacy clinic taught by a clinical teacher in which second-year students satisfy a LRW appellate advocacy course requirement by representing actual clients in appeals. To support our arguments, we describe two experimental courses we cotaught, which fit the (1) and (3) profiles above.

We offer four justifications for our proposal. First, by using actual legal work, LRW professors can teach basic LRW skills more effectively. Second, teaching with actual legal work serves important secondary educational goals. It introduces students to: (1) a client-centered, problem-solving method of work; (2) critical legal analysis of law and justice systems; and (3) professional responsibility issues, especially access-to-justice and pro bono issues. Third, engaging first-year students in actual legal work can help to change the culture of traditional first-year legal education, which now is dominated by theoretical and Socratic instruction. Fourth, using actual legal work to teach LRW courses can help people to obtain more effective access to justice.

Today, the substantial majority of LRW courses focus on research, writing and analysis. Most schools require a sequence of LRW courses beginning in the first semester. The ‘reforms and changes’ that LRW directors are making or contemplating making are consistent with teaching with actual legal work.

LRW scholars debate the merits of ‘limited’ versus ‘expanded’ LRW courses. In 1947, a parent of clinical education, Judge Jerome Frank, skewered legal education for its excessive reliance on the appellate case method. Many view Frank’s recommendations as an early blueprint for clinical education.

Some criticise LRW courses because they do not teach law students to write well. Since writing is a skill developed through repetition and experience, we are dubious that one, two, or even three courses, by themselves, can make students polished legal writers. Still, today, many ‘law schools devalue legal writing classes’.

We believe these structural problems are amplified by the predominant LRW method: basing writing exercises on canned problems. The canned problem usually is a complex hypothetical involving imaginary parties and legal issues. Our critique of the prevalent model of the canned problem follows from its features.

The problem may incorporate timely issues that are ‘real’ in someone else’s case. They may be topical. However, neither the writing faculty nor the students have any relationship to the actual case, and the canned problem has no real connection to the faculty or the students. The canned problem that we have in mind features balance and control. There are equally persuasive arguments on both sides of the legal question (balance), because the facts and the legal authorities are limited (control). These are characteristics of canned problems whether students write a ‘predictive’ memo or ‘persuasive’ brief. In the end, many canned problems discourage students from developing alternative factual theories, legal arguments, and theories of the case, and ill-equip them to work with uncertainty and indeterminacy, as they must in practice.

In any of the four course models that we identify in the introduction, which base LRW assignments on actual legal work, students can effectively learn basic skills (and more), while producing work that can be helpful to others. We accept that hypothetical problems may be a reasonable way to teach basic aspects of legal research and writing, at least initially, in the same way that scales are a reasonable first step in learning to play the piano. But this speaks to the perceived need for such assignments in the first semester, or perhaps in the first half of the first semester.

We take the next steps in our argument by describing the two experimental LRW courses that we taught with actual legal work. We taught this appellate advocacy course in fall semester, 2003. The standard course description says that ‘[s]ynthesising what they have learned in the earlier courses, the students research and write an appellate brief and deliver an oral argument on the brief.’ This final (and third) course in the LAWR sequence is ‘taught in the fall semester of the second year’ and ‘coordinated with the fall competition of the Moot Court program.’

We selected the case that we intended to use to teach the fall course in the preceding summer. The client was Nathanial Anthony (the name is fictitious). Millemann also created a post-conviction clinic to respond to Anthony’s request for legal assistance, as well as to requests from several other prisoners who had meritorious claims, including credible claims of innocence. Thus, we developed the experimental LAWR III course and the new post-conviction in tandem, with the students in each working together. We were convinced that Anthony had viable post-conviction claims and decided to make these claims the basis of the assignments in the LAWR course. Later, we converted the student’s work into a clemency petition.

The record in Anthony’s case was fixed in some respects and fluid in others. It included the historical documents, but we added a dynamic feature by connecting the LAWR III course to the post-conviction clinic. As the LAWR III students analysed the existing record, they identified additional facts they wanted to know, and transmitted their requests for information to the post-conviction clinic students. The process, therefore, not only engaged the students in the search for the truth (what actually happened), but also helped us to explore the different rules governing trial, appellate, and post-conviction evidence.

Initially, the clinic, acting through Millemann, committed to investigate Anthony’s case. After reading the ninety-three-page trial transcript of this half-day capital trial, it became impossible to really consider rejecting case. Therefore, after we discussed the basic facts of the case with the students, we posed the question: should we — the students and the two of us — spend our considerable resources representing Mr. Anthony? Or should we generate some other form of actual legal work for the students that might benefit a larger number of people? In the end, there was a virtual consensus that we should represent Anthony.

We identified preliminarily seven sets of substantive and procedural issues that we intended to assign to the LAWR III students. The issues descriptions were general, leaving the students substantial room to refine, vary, or for good reasons, discard the issues and work on another and better one.

We divided the twenty-seven students into seven groups, and assigned one issue to each group. We divided each group of four (in one case three) students into two teams of two students, and we assigned one team to represent Mr. Anthony and the other to represent the State. Although ‘co-counsel’ worked together, each was responsible for his or her own brief and each made a separate oral argument. In what became one of the most interesting parts of the course, we met weekly with each of the seven workshops, which were comprised of two sets of opposing co-counsel and the student from the post-conviction clinic who had been assigned to that workgroup.

We appointed responsibility for the course in ways that were consistent with our backgrounds and expertise. The clinical students had primary responsibility for interviewing Anthony, maintaining the relationship with him, developing the facts in the case, and drafting the pleadings. The LAWR III students did legal research on and wrote about a number of the issues. We devoted one class session to student evaluation of the course, including the use of the Anthony case.

Our second experimental course was LAWR II, which first-year students take in their second semester. This LAWR II/LTP course was different from our LAWR III course in important respects.

We had fifteen students in the course, all of whom selected it as their second-semester elective. Although this was half the number upon graduation, they can maintain their idealism in various forms of private as well as public practices. The fact there were actual clients in both LAWR courses motivated the students to seek solutions for their problems, even if it meant revising the assigned issues and seeking to develop new facts. As a result, the classes often evolved into problem-solving exercises, but without changing the basic nature of the research and writing assignments.

Some argue that by carefully selecting writing assignments, LRW teachers can help make students more ‘sensitive to perspectives of people who are not like themselves,’ begin a process of ‘real social reform;’ help students ‘associate an awareness of ethics with use of [LRW[ skills’ and help students appreciate ‘their responsibility to perform pro bono legal work throughout their careers’. We believe, however, that to teach professional responsibility effectively, and to accomplish most of the other laudable teaching objectives, the LRW assignments should be based on actual legal work. The problems of actual clients generate professional responsibility issues and experiences that cannot be credibly mimicked in hypothetical.

In our two courses, we focused on access-to-justice and pro bono issues. Many students come to law school with the goal of helping people. Others whose goals are not as well-formed seek careers that will have meaning beyond material success. Helping students like these understand that they can use their developing professional skills to serve others validates their best instincts and is a first step in shaping their professional self-concepts. The sooner this comes in a law student’s education, the better. The more it is delayed, the more alienated and disengaged some law students will become.

Introducing actual legal work into LRW courses can change a second part of the law school culture: the nature of the relationship between teachers and students. When students and faculty work together on actual matters the relationship often changes from hierarchical to collegial. Such relationships can improve the quality of a student’s education and reduce the stress of the first-year experience. With most actual legal work, the teacher cedes some control over the process. With this come some unpredictable, or at least unpredicted, developments, and some unevenness in assignments.

We have described two experimental courses that we developed together and co-taught. Understanding the limitations of first-person accounts, we have attempted to analyse the benefits of these courses and courses like them and the challenges they pose to teachers, students, and law schools. We believe the courses were successful. There are many other possible ways to engage LRW students in actual legal work. What is essential, in our view, is that LRW and clinical teachers work together to create and test a variety of course models.