Legal Education Digest
M A Millemann
4 J Assoc of Legal Writ Dir, 2008, pp 9–20
Legal research and writing (LRW) teachers should use actual legal work to teach their courses, including (indeed, especially) first-year courses. The legal work might come from a planned or ongoing lawsuit, transaction, or other matter. What is important is that it is real, although in my model, the teacher can add hypothetical features to customise the legal work to the particular LRW course.
It also is important that the students’ work be useful or potentially useful to people or organisations that need legal assistance. This gives students a sense of personal responsibility for the legal problems of another, substantially enhancing and diversifying the educational experience by strongly motivating students to do their best work.
The best models, I believe, can be created jointly by LRW and clinical teachers. Partnerships between LRW and clinical teachers offer many reciprocal benefits. In what follows, I describe these benefits. I begin, however, by describing the two experimental LRW courses that Professor Steven Schwinn and I developed and taught with actual legal work.
The first course we co-taught was the third and final course in our LRW sequence: a two-credit, third-semester appellate advocacy course, which I will call ‘LRW III.’ We developed the issues for the LRW students’ appellate briefs oral arguments from a post-conviction matter, which had not yet been filed and which a newly created post-conviction clinic was handling. I was the supervisor in that clinic as well. When we began work on the case, our client, whom I shall call ‘Mr. Anthony,’ had been incarcerated for thirty-five years for a murder he did not commit. We used the student’s work to persuade the governor to commute Mr. Anthony’s sentence, in effect, to time served, resulting in his release from prison.
We developed this experimental LRW III course and the post-conviction clinic together. The LRW students were the research and writing arm of the enterprise, but they did not represent Mr Anthony. The clinical students were responsible for the interviewing, counselling, and otherwise representing their client under the State’s student practice rule. They did this with the help of the LRW students’ work product.
Professor Schwinn and I identified seven legal issues for the LRW students and divided the twenty- seven students into seven work groups, assigning one issue to each group. Within each group, we assigned a team of two students to represent the client, and two (in one case, one) to represent the State. Although ‘co-counsel’ worked together, each was responsible for his or her own final brief and oral argument.
Using a clinical case ‘rounds’ method, which engages faculty and students jointly as problem solvers (the analogy is to doctors in teaching hospitals), we met weekly with each of the seven groups, each of which also included one student from the post-conviction clinic. Many of the most interesting and important discussions occurred in these sessions. ‘Opposing’ counsel, augmented by the clinical student in each work group, explored the strengths and weaknesses of the arguments, and in this give and take refined their final arguments. This process considerably enhanced the quality of the actual representation that the clinical students and I were able to provide to Mr. Anthony.
The second course Professor Schwinn and I co-taught was a hybrid. We began with the two-credit, second-semester LRW II course, which focused on pleadings in civil pretrial litigation. To teach this course, LRW II teachers normally used a well-developed hypothetical case. Instead, we drew the assignments from five actual police brutality cases (involving alleged constitutional torts) and from litigation planned by a public interest organisation in which plaintiffs would seek to create a constitutional right to counsel in some civil cases.
We added a three-credit ‘Legal Theory and Practice’ component to the LRW II course. Through these clinical components, teachers use actual legal work to enhance theoretical analysis, while the teachers and students provide legal services to poor and underrepresented persons and communities. The teachers use the practice experiences to critically analyse access-to-justice, professional responsibility, and other systemic issues.
We had fifteen students in the course, all of whom selected it as their second-semester elective. A small, private law firm was counsel in the police brutality cases, and the Public Justice Center, Inc. a public interest organisation, was counsel in the right-to-counsel cases.
The private lawyers obtained client approval for the students’ work, helped us to develop the assignments, gave us duplicate case files, taught a class on police brutality cases, and helped answer student questions during the semester. In these cases, the students, working under my supervision and that of Professor Schwinn, interviewed the clients and witnesses and drafted complaints and discovery requests. After several drafts, which we supervised, the students provided their final pleadings to the law firm.
The right-to-counsel case generated the major research and writing assignments for the semester. These were devoted to procedural issues that Maryland’s appellate courts had not resolved, as well as one of the major substantive arguments. The volunteer lawyer for Public Justice Center, a former Maryland Attorney General, taught a class on the issues in the case, and he and the organisations’ lawyers helped us to develop the assignments.
Students worked on the police cases in groups of two or three, and we met with each group weekly. For the right-to-counsel case, we worked with the students, and they with one another, to develop possible legal theories, and then each student wrote a memorandum. These assignments were relatively open-ended; e.g. We gave the students real legal issues that had no clear answers and for which there was no direct precedent. We provided these memoranda to the Public Justice Center lawyers.
The students in both courses were strongly motivated by the real nature of the work, even though neither set of students actually represented the clients. The pretrial litigation students in LRW II did interview the potential plaintiffs in the police case, but the appellate advocacy students did not meet Mr. Anthony until after they had finished their work and he had been released from prison. What was remarkable was that even this indirect responsibility for the legal problems of others and this limited personal contact proved to be powerfully motivating. Many of the students considered the potential plaintiffs and Mr. Anthony to be their clients, and the students worked on the assignments as if they were. The students’ response to performing actual legal work was very positive.
One appellate advocacy (LRW II) student said: ‘I think it’s much more rewarding having a real client,’ referring to Mr. Anthony. ‘I find myself compelled by his situation, and I have responded, I think, significantly more to the work and the research and everything that’s involved with this class than I would with a canned case.’ In comparison, this student said that the canned problems in his prior LRW courses were ‘exercises quite frankly in tedium and boredom,’ and in those courses, it was ‘just a matter of doing it by rote’ and getting it done [so] you can move on.’
A second student in the course said: ‘I felt personally challenged to do the very best that I could here and I like that.’
A third student said that the opportunity to work on a real case was ‘part of the incentive to do more work whatever the nature of the research was.’
The pretrial litigation students (LRW II) had similarly positive reactions. One said: ‘I’m never going to forget the name of my first client and I think that’s something that you don’t realise until after it happens. But, I’m so aware of what I’ve been doing and the impact this person has had on me ... [T]hat’s something that is going to stay forever with me. It’s really special.’
A second student in the course said: ‘[I was] living, and breathing and sleeping’ the case work. A third said: ‘[T]his is hard and this is a lot of work and I just want to go to sleep at night, but you know, it [referring to the actual legal work] keeps you focused, at least for me, on a different level.’
The motivational force of the cases was evident in several ways. The degree and quality of student participation, both in the classes and work group sessions, were substantially better than in standard LRW classes.
The students’ research was more thorough and creative, and, as I will describe below, their written analysis also was better than that of students in LRW courses taught with canned problems. I believe this was due to the motivational force of the actual legal work and the inherent limits of canned problems.
The students’ written analysis was better in two ways. First, ‘[T]he theories of the case and resulting arguments were better developed, more persuasive and more nuanced. The students also found and developed new arguments (ones that we had not previously identified), and added new components to and refined the predicted arguments, in ways that students in our traditional course generally had not done.
Second, and not surprisingly, given the dynamic nature of the facts in the actual case, our students’ understanding and use of the facts also were substantially better in the two courses than in standard LRW courses.
For all of these reasons, the quality of the briefs and oral arguments was better than usual in these two courses. On the other hand, the grammar, syntax, and style of the students’ writing were not improved. We did not teach these skills particularly well, and actual legal work did not enhance the teaching we did.
In the analysis above, I describe a paradox that challenged my theory of LRW teaching. The ‘best’ LRW teaching problems — the ones that are most carefully planned, controlled, and tested — often undermine development of some of the most critically important lawyering skills, including creativity and dealing with factual and legal indeterminacy.
Let me add two important caveats. First, to teach successfully with actual legal work in LRW courses, LRW instructors must exercise substantial control over that real material. Establishing the boundaries of factual records and limiting research and writing to generally identified sets of issues leaves ample room for student creativity, especially when the students understand, as Professor Schwinn and I made clear in both courses, that the professor has not invented the problem or developed the ‘best’ answer to it.
Second, I do not mean to suggest that canned problems have no educational value. To the contrary, I think they can be very useful, especially the more sophisticated ones with, for example, rich depictions of clients, pleadings from an actual case, multi-media materials, and interactive dimensions. I have not found, however, that they produce the same levels of student engagement that I saw in our two experimental courses. Nor do I think they can be used to achieve some additional educational goals, to which I now turn.
First, teaching LRW courses with actual legal work introduces students to a client-centred, problem- solving method of work. In our two courses, rather than invisible or made-up characters tacked onto a ‘problem,’ the clients and their stories posed actual problems, and the students evaluated legal arguments by asking whether they would achieve clients’ goals.
Second, the case also provided us with a real basis to critique the legal rules, procedures, and systems.
Third, as important as any other benefit, teaching first-year students with real clients and cases reinforces the idealism that many students bring with them to law school and fight to maintain in the face of the traditional first-year curriculum. Students, like the rest of us, need to legitimately feel useful to appreciate the value of being a lawyer.
Finally, involving LRW students in actual legal work can help real people obtain access to justice. The failure of LRW courses to do this has important service to educational consequences.
Of course, there are challenges in using actual legal work to teach LRW courses. Spending too much time on access to justice, professional responsibility, and goals other than core research, analysis, and writing skills can overload a two-credit course. Teachers can develop hybrid LRW-clinic courses or seek to add an additional credit to the LRW course to pursue some of these goals, or accept the traditional two-credit limitation and focus on the core LRW goals, harnessing the motivational power of actual legal work to teach these basic skills. Some students in the two-credit LRW III course felt that there simply was not enough time (and credit) to handle all that the course required.
The LRW teacher also must be clear about the relationships among referring lawyers, teacher, and students, and develop policies and agreements that protect client confidences, or simply decide not to teach with sensitive information, using hypothetical facts to fill these gaps.
In addition, one or two students in the LRW III course complained about being assigned to represent the state against Anthony in a course dedicated to Anthony’s representation. We could have done a better job explaining why this role assignment was a critical step in representing Anthony effectively.
Several students in both courses also complained about course ‘disorganisation.’ These students reacted, in part, to changes in issues, theories of the case, arguments, and facts that were produced by the relatively dynamic aspects of the courses, and, in part, to our perceived failures, as teachers, to better anticipate and control the issues in the legal work.
Learning how to bring as much order as possible to real-world events is one of the primary skills of a good lawyer, and it is, after all, the most valuable thing good lawyers do for their clients in every form of practice. In LRW courses, here are some useful tips: First, ‘organise the actual legal work as much as possible. It can take as much or more time to convert actual legal work into good teaching material as it does to construct a good canned problem.’ Second, ‘[a]ccept that there will be unexpected developments. Warn the students about this. Teach about the ways in which lawyers plan for different contingencies. Do this before the need arises.’ Third, ‘[d]evelop contingency plans, e.g., “reserve” assignments and “replacement legal work.”’ Fourth, ‘[i]dentify problems as soon as they develop (semesters go quickly) and make the best mid-course corrections you and the affected students can. Factor unexpected developments into the grading criteria to compensate for unevenness in assignments, and tell students you will do this.’ Finally, ‘keep your sense of humour.’
I enjoyed the two experimental LRW courses as much as I have any course that I have taught in thirty-three years of teaching. The substantial majority of students felt the same way. The courses were hard work, fun, challenging, interesting, and, I think, successful.