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Sunday, March 01, 2009

Taking stock mid-semester

Last Friday, I held "Light Bulb Day" in civ pro. That is when I sum up and (hopefully) bring together all of pleading by talking and walking the class through the first phase of a civil action, from the filing of the complaint until the pleadings are "closed." This is something I did by request the first time I taught civ pro (at Florida State) and I have continued to do it, even making it an explicit part of the syllabus. It is the forest-and-trees point. Pleading involves so many discrete pieces (trees) that must be taught individually and not necessarily in chronological order; LBD is the point that I fully explain the forest.

It also marks something of a mid-point of a semester in which I tried to do some different things (my approach to civ pro, in terms of coverage and order of coverage, changes more than for any other course I teach). So it is worth pausing to reflect.

1) The laptop ban is going better than I hoped. I look at it much as I look at my iPhone: Why did I wait so long and what did I ever do without it? I never realized how much I missed eye contact. Even the bored and checked-out students at least look up at me. And when students have to look up, you can get a sense from their eyes as to whether they are "getting" what you were talking about and adjust accordingly. I also never realized how loud keyboards are when 75 students are typing simultaneously.

The students seem OK with the policy, although I will not know that for sure until I see the evals at the end of the semester. Interestingly, virtually all of them use laptops in their other classes. Which tells me that my banning laptops is not having any broader pedagogical effect of showing them the wisdom and benefits of laptop-free note taking. It has only the narrower (but still positive) effect of making my class function better.

2) I gave them four sample complaints from well-known cases, to illustrate the form and structure of pleadings and the form that a lawsuit takes. I think four is too many and two of them (from Iqbal v. Ashcroft and from the telecom wiretap suits) were too long and complicated to be fully useful. I need fewer and better examples next year.

3) My new order of covering pleading went well, I think. We covered the basics of the complaint other than notice v. fact pleading (number paragraphs, etc.), joinder, and Rule 11. We then talked about Rule 12 motions, especially 12(b)(6). We then came back to the central question of the level of detail necessary for a complaint under Rule 8(a)(2) and 9(b), tracing the evolution of pleading from Conley to Rule 9(b) to Twombly (and perhaps to Iqbal, a Bivens claim that could further re-define notice pleading.

Two benefits to this. First, it seemed that by the time we got to the "how much detail in notice pleading" question, the students understood the overall stylistic and structural concerns of a complaint and the process for putting the suit together. Now they were ready to consider how much information they had to include to put together a successful complaint. Second, it allowed me to proceed in order, rather than breaking it up.

4) I think I need to add a short reading assignment and a ten-minute lecture on claim preclusion (res judicata) as part of pleading. I do not have time to cover res judicata in only four hours, but I think the basics are necessary to help them understand how to frame a complaint and the claims they want to bring. One student asked a question after class the other day demonstrating that he had made the link between preclusion and joinder of claims under Rule 18(a). I think I need to teach that more clearly for all.

5) I now am in the middle of what probably will turn out to be 2+ days on Discovery, basically doing straight lecture providing very broad overview of what the rules and issues are, without much normative discussion. Discovery presents a paradox: On one hand, it is the most important part of the course because it so dominates the pre-trial process; on the other hand, I have found it very difficult to teach in a classroom environment following my usual approach. I decided that the purpose of this section should be to give them enough to understand summary judgment (which depends entirely on what turns up in discovery) and a basic familiarity with the rules and concepts they will face in pre-trial practice, clinic, and the real world.

CALI has some on-line exercises that I did not have time to prepare for this semester. The solution may be to incorporate those into this part, so their working through those practice problems supplements the lecture. But that is a change for next year.

6) The first of two in-semester, 500-word essays will be distributed this week and due the following week. Having to grade 135 redundant essays will not make for a fun spring break, unless the essays turn out to be pretty good. But this frees me up to do a broader, greater-coverage multiple choice/short-answer final. I never have done in-semester writing assignments before, so we will see how it goes.

Posted by Howard Wasserman on March 1, 2009 at 12:58 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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Good ideas. I like to mix things up like this, too especially around midsemester. It's a great time to reflect.

I usually always give a quiz or two during the semester, and I assign CALI exercises (students only have to "certify" that they did them, using a "secret quiz number" which differs from their final exam number (the Registrar helps me connect them when I'm grading)). In some courses I have them watch a movie or documentary on their own (check out the PBS Frontline website (http://www.pbs.org/wgbh/pages/frontline/view/ ) for some that might affect your subject areas - students can watch them online for free). All of these things count up to 20 percent of the final grade. The final is 80 percent. The way it works is, if all students do all assignments, they head into the final at pretty much the same grade level. That's important to me, because some students "get" the material faster than others. I'd rather that the final exam serve as a the way of differentiating comprehension of the course material. I understand some folks might disagree with me on that, but so be it. Students roundly end up liking these exercises and assignments and usually say so, unprompted, in course evaluations.

These things also help students use various learning methods and styles - one might have lightbulb moments doing CALI (I love active learning), another while watching a movie/documentary, another while reading an assigned law review article, etc. My Evidence students started doing CALI a week or two ago, and they really, really like it.

Let me suggest that, with half a semester left, you assign or at least point students to CALI exercises that you might make "optional," or "recommended." Even if you have not had time to prep the exercises for this semester, students can still benefit. You can take a quick look at the instructor version of the exercises to see if you like them. I bet that students will appreciate that you are continually taking stock and finding new things that might help them.

Thanks for the post.

Posted by: Brian J. Foley | Mar 1, 2009 2:00:26 PM

A portion of my law review article was on the pleading standard in music file-sharing cases. The complaints are fairly brief and demonstrate the Twombly effect. Perhaps they will be less useful (as might my article) after Iqbal, but I'd assume students have some sort of interest in file-sharing cases due to the prevalence of the activity.

Interscope Records v. Rodriguez
Original Complaint:
2006 WL 3853797
Court Finding Complaint Insufficient:
2007 WL 2408484
Amended Complaint:
2007 WL 2972508

Posted by: lawstudent | Mar 1, 2009 4:00:38 PM

I do things a bit differently, but I think we're trying to get at the same thing. I post three random complaints (not particularly "interesting" ones) that I pull off of PACER. I divide the class into groups, and have each group focus on one. Then each group tells us broadly what the lawsuit is about, and then they idenfity the different parts of the pleading. (They also see the answers to these things, as well as one 12(b)(6) motion.) They were all surprised at how long these "short and plain statements" really are--even a simple car accident complaint ran to ten pages!

I do periodic reviews, and I also give ungraded review questions that they must do individually or in groups, depending on the assignment. My feeling is that this requires them to sit down and review, which is invaluable for something as complex as joinder.

I spend more time on discovery than you do, and I build in a day to do a little in-class simulation exercise--again, from a not inherently interesting case. One reason that I don't like focusing on the inherently interesting cases is that I don't think they give a fair sense of what lawyers do on a regular basis.

Finally, I am considering reserving the final week or so (3 classes) for a different kind of exercise. I'd divide the students into groups of four or five, and give each one a case file. These could be anything from Jones v Clinton and Buffalo Creek to a case that gets settled before it is even filed. The students would have to do an oral or written report on the interesting procedural aspects of the case. My hope is that this would help them to bring together all of the things we learn during the semester to see how lawyers use these Rules.

This is my first time teaching the course, so I'm feeling my way along. But I am determined to give my students a sense of the actual job of lawyering (at least in the litigation or quasi-litigation context).

I'm eager for any thoughts!

Posted by: Hillel Y. Levin | Mar 1, 2009 6:01:37 PM

Prof. Levin raises what I think is the most important issue: giving students some sense of what litigation will actually end up being like. To that end, his idea of using just any complaints, rather than famous ones, seems like a very good idea. Whether you do small groups or not, perhaps some selectivity might be called for, rather than randomness, to ensure that you are able to show the great variety in methods of satisfying the Rules.

In fact, you may or may not find it pedagogically useful to show the students complaints that do not pass muster (e.g. paragraphs not numbered; clearly more than one informational nugget per paragraph) and yet are not dismissed or even remarked upon particularly by the Court.

Posted by: Jason W. | Mar 1, 2009 8:34:55 PM

These are all great ideas that I'd love to incorporate into my Civ Pro class. That said, we teach a 4-credit (i.e., 4 course hours) one semester Civ Pro class in the 1L fall here at Harvard, and I've found it tight to really cover the bases even without incorporating these kinds of innovative teaching approaches. Do all of you who've contributed to the thread so far have classes that extend for longer periods of time than the one we have?

Posted by: I. Glenn Cohen | Mar 2, 2009 10:17:30 AM

We teach two semesters, the first (which I do not teach) on jurisdiction; and the second on Rules. Each semester is 3 credits (three 50-minute meetings per week).

I would think it would be extremely difficult to do anything creative if you have to pack it into one semester.

Of all of the first-year courses, it seems to me that civ pro is the one that really deserves two semesters. Sure, I say that as a person who teaches civ pro, so I'm biased. But the truth is that there are two different civ pro courses: Con Law and the Rules. So it makes sense to give them each a semester.

I'm curious what others think in this regard.

Posted by: Hillel Y. Levin | Mar 2, 2009 8:03:37 PM

Here at John Marshall, it is 2 semesters/3 credits each. I could see it being 2 credits for the jurisdictional issues and 3 credits on Rules, but I couldn't see it being taught as a 4 hour, 1 semester class. I know that I read one survey of lawyers (I can't remember which one), in which they indicated that Civil Procedure was the most important class that they took in law school.

Posted by: Colin Miller | Mar 2, 2009 10:39:53 PM

Professor Wasserman,

I should think a laptop ban would be extremely difficult if not discriminatory for law students with disabilities who require use of a laptop as an educational accommodation. You may want to consider this aspect.

Kind regards,

Margaret Holt Baird, Esq.

Posted by: Margaret Holt Baird | Mar 6, 2009 10:13:04 AM

Since the disabled students who benefit from the use of laptops invariably qualify for notetakers, we simply allow exceptions for notetakers. We can maintain confidentiality with regard to non-visible disabilities since students presume that the laptop user is a notetaker rather than a student with a disability.

Posted by: Donna Coker | Mar 6, 2009 8:15:28 PM

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