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Tuesday, November 12, 2013

Teaching procedure from bad procedure

Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.

Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.

The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."

Posted by Howard Wasserman on November 12, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink

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Comments

Here is a data point. Probably the most valuable part of my trial court clerkship was seeing bad pleadings. It taught me what not to do. In law school I only saw good and great models. Lacking context, I often failed to grasp what made them good -- many of the rivets didn't show. Only not having those things present made me understand their value. That, more than anything, taught me to draft a pleading. Part of that was also seeing from the consumer's angle -- the court. It amazed me how many submissions either failed to explain what the case was about, failed to request a specific remedy, failed to connect demands to facts, or even if they got that right failed to observe key local rules....

Posted by: Michael Froomkin | Nov 12, 2013 2:16:37 PM

Fair point, Michael. The issue is what to do when you have a limited number of complaints to show and limited amount of time to discuss them, compared with what I was able to see in a two-year clerkship.

Posted by: Howard Wasserman | Nov 12, 2013 4:24:30 PM

I don't teach Civ Pro but agree with Michael. Seeing examples of a job poorly done can help students understand what makes a job well done.

Posted by: Matthew Bruckner | Nov 12, 2013 5:54:35 PM

Got to say, the idea that we should teach students by showing them a bunch of bad examples, strikes me as, well, pretty silly. Maybe useful if you have unlimited time, and there is no question that when one clerks, it is helpful to see a range of quality but as a teaching method, I would opt for high quality all of the time. This strikes me as the kind of thing only a law professor would say -- can you imagine someone teaching writing by focussing on bad writing or literature or . . . I also think that a Professor should think twice or three times before using the facts of this particular case -- too many professors get a bit of a charge out of using salacious facts when it just distracts from what you are trying to teach. There are many many section 1983 cases, many of which will be well pled and well defended and will prove better teaching tools.

Posted by: anon | Nov 13, 2013 8:26:28 AM

Anon,
Why would "only a law professor say" this? As a law professor, former high school teacher with pedagogy training, and someone who works closely with his students on writing, bad examples are very important. In my sentencing class this semester, I provide my students with a set of briefs--one very good, one very bad (grammar, clarity, organization, citations, are all bad). I can tell them that they need to spell words correctly, but when they see the finished product of a lawyer who didn't do so, they realize just how important excellent writing is. Good models are good, but bad models are good too. This is why your parents, when you were growing up, told you about other bad kids--so you wouldn't be like them.

Posted by: Steven R. Morrison | Nov 13, 2013 9:22:54 AM

With all due respect, if you are spending time teaching law students the importance of good spelling, I think you have proved my point. Just saying.

Posted by: anon | Nov 13, 2013 11:10:39 AM

I think it is a good idea to expose students to these bad examples. It's important not just to show students what poor lawyering looks like, but also to force them to articulate what is wrong with the bad example and how they would fix it. Criticizing and helping to improve the work of others are important skills for legal practice.

Posted by: carissa | Nov 13, 2013 11:58:12 AM

Being able to spot and correct weaknesses in legal documents is one of the most useful things a law student can learn.

Posted by: anon | Nov 13, 2013 1:54:09 PM

But you do need to go through the bad example and show exactly what is bad about it, perhaps have students collectively revise it. I do this with Answers - we go through a poor Answer with lots of mixed up counterclaims/denials/defenses and we talk about each one: is this a defense or a denial? Is this an appropriate counterclaim? Let's redraft this section together....I think it works pretty well.

Posted by: AP | Nov 13, 2013 2:14:23 PM

anon: "Got to say, the idea that we should teach students by showing them a bunch of bad examples, strikes me as, well, pretty silly. Maybe useful if you have unlimited time, and there is no question that when one clerks, it is helpful to see a range of quality but as a teaching method, I would opt for high quality all of the time. "

Incorrect, unless the professor is foolish enough to try to teach examples of *all* bad pleadings. Instead, the professor could show both the most common errors.

Posted by: Barry | Nov 13, 2013 2:49:20 PM

I disagree that this is not a good teaching case. Yes, the facts are salacious, as well as likely to cause outrage in students. But it is important for them to learn to look past the outrage and the salacious and focus on what is important. That itself is an important lesson.

Posted by: Howard Wasserman | Nov 13, 2013 10:31:06 PM

"Yes, the facts are salacious, as well as likely to cause outrage in students. But it is important for them to learn to look past the outrage and the salacious and focus on what is important. That itself is an important lesson."

And a lesson so few plaintiff's lawyers learn.

Posted by: Heynonnynonny Mouse | Nov 14, 2013 10:58:52 AM

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