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Wednesday, March 26, 2014

Mixing Things Up in Class

As I approach the end of my first full year of teaching doctrinal classes, I’ve started to think about things I’d like to adjust the next time around.  One of the items on my list is including more interactive exercises that break up the standard routine of doctrinal 1L classes.  My sense is that regardless of how interesting the material may be, the repeated grind of “read the cases, prepare for class, answer questions when called on, and maybe participate in broader class discussion” often starts to wear on students after a while.

This year, in each of my classes, I took a full class period somewhere towards the middle of the semester and I did an interactive exercise.  The exercise took the form of a highly informal group oral argument, for which I gave students a set of facts, assigned them a closed set of cases, and had them craft arguments based on the case law (both outside of class and in small groups within class).  I’d encourage them to think not only about the best way to frame the case law for their side, but also the best way to frame the facts.

Pedagogically, I like this exercise not only because it presents the material in a different way, but also because it reminds students of all of the strategy and decisionmaking that went into the cases they’re reading in their classes.  All they see are neatly packaged, antiseptic appellate opinions—but getting to that point involved a lot of strategic decisions by lawyers as to how to frame the case law, how to characterize the facts, and so forth.  It also helps them to see that in reading appellate opinions, what they’re usually getting is the winner’s version of the facts and of the law, rather than facts and law as measured by some undisputed objective standard.

I’ve gotten a strong positive response from my students, who have enjoyed these exercises.  My current sense is that I’d like to add maybe one or two similarly interactive exercises throughout the semester, but I’d like to do so without repeating the same format of the exercise described above.  So I’d love to hear about people’s experiences with different types of interactive exercises in doctrinal classes.  What sorts of exercises have you used?  Did you find them effective?  And any thoughts as to what makes these sorts of exercises “work” and the best ways to design them?

Posted by David Han on March 26, 2014 at 01:58 PM | Permalink

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Comments

Thanks for the post, Dan. I have some ideas for other class projects that I've used in my Torts and Administrative Law lecture classes--from negotiations over damages and in- class rulemaking proceedings to client interviews, expert examinations, complaint drafting and designing compensation funds, like BP or the September 11 Fund.

I discuss many of those projects, as well as how to design them in a way that works within the broader theoretical questions raised in my classes, in an old Prawfsblawg post here (http://prawfsblawg.blogs.com/prawfsblawg/2012/01/diary-of-a-nutty-professor.html). If anyone is interested, feel free to reach out to me. I'm happy to share.

Posted by: Adam Zimmerman | Mar 26, 2014 3:33:05 PM

That was supposed to be Dave!

Posted by: Adam Zimmerman | Mar 26, 2014 3:42:01 PM

Before I started teaching, I was given two books on college-level pedagogy, "On Course" and "What the Best College Teachers Do." Both were very helpful for thinking about how to design a better classroom experience (and now there is a book called "What the Best Law School Teachers Do"). One of the most interesting take-aways for me was that in a one hour, pure lecture course, students remember about 70% of what you say in the first 10 minutes, 10% for the next 30, and then 40% in the last 10 minutes. To me, this drove home the importance of varying my teaching methods. Once I was in the classroom, it became apparent when I spoke for too long. Students visible disengage. They lean back in their chairs, take fewer notes and spend more time looking at their screens.

In addition to doing a few full-class interactive lessons, I'd also encourage you to think about how to incorporate shorter, interactive elements into every class. There is a tremendous amount of literature on effective teaching. A lot of it is written by (and aimed at) Legal Writing and Clinical Profs. But there is a lot that is interesting to a general audience and a lot that can be adapted to your needs.

Posted by: Matthew Bruckner | Mar 26, 2014 4:15:15 PM

Hi David:
I think mock client interviews work really well even in a large classroom. Send the class a memo in advance relating the basic issue a potential client seeks help with (which obviously will be related to the subject matter you wish them to understand). Put them into groups of two at the beginning of class to prepare and tell them the client will be here in 5 minutes. Then pick a team to conduct the interview (ask everyone else to keep track of interview moments they thought the team handled well and questions or information that should've been conveyed but wasn't).

So far I've played the client myself, which works well because (1) I know the area of law well enough to improvise if they ask an unexpected question; and (2) I like to ask the student-interviewers questions that will force them to explain the policy behind the rules they are conveying to me as a client. It can be a little hard to be in-role and still keep track of feedback I want to provide later in critique, but I'm getting better at it.

You can adjust the degree of detail of the pre-class memo according to the complexity of the facts and legal issue, but I like to withhold enough relevant facts so that the students have to solicit some of the information necessary to determine which rules apply. If the scenario involves future action the client wishes to take, you can put the students in the position of instructing the client how to conform to the law or even having to explain to the client that his actions are prohibited or could incur liability. Sometimes this leads in the critique component of the exercise to a discussion of ethics.

I like this as an alternative to the mock oral argument (which I also use) because it's a way of asking students to apply the doctrine they're learning to facts that more resemble how they are developed in the real world -- through client narratives that contain a mix of relevant, irrelevant, and ambiguous info -- without having to adopt an advocacy position.

Posted by: Jason Cade | Mar 26, 2014 9:48:03 PM

David:

we just had a brown bag about this very topic yesterday, the same day you posted this. And Mr. Cade already spoke about one of my favorite strategies - mock client interviews. It does an excellent job of getting students to think in terms of fact development, instead of fact analysis. And it reflects the real world of practice, where clients do not walk into your office and give you 6 bullet points of relevant facts.

Along these lines, but slightly different, is something I do in Evidence from time to time. After we learn the foundational elements for some issue (like the business record, or dying declaration, exception to hearsay exclusion), I ask a student or two to do a direct examination of me, in the role of a witness, to establish the necessary elements so that a business record/dying declaration will be admitted under the hearsay exception.

I give them very little: merely that I'm the recordkeeper at the organization, for example, or that I overheard a statement by the now dead declarant, and let them go from there. Again, this gets them to start from the law and then develop facts relevant to the law, instead of going the usual way from facts back to the law.

And when one student runs out of things to ask, but I'm sure that admissibility is not yet established, I ask if any other students have other questions they want to ask. We do this until the necessary foundation is laid, or they give up because my answers indicate that the exception won't be met.

I think it helps cement their knowledge of the underlying law in a way that complements the problem approach (here is a set of facts, is it a dying declaration?) that otherwise predominates my Evidence classroom. And it does a nice job of mixing up what happens during classtime.

Posted by: Kevin Lapp | Mar 27, 2014 6:26:41 PM

Thanks to everyone for the excellent suggestions! (And please keep them coming.)

Posted by: David Han | Mar 28, 2014 3:37:46 PM

I don't teach any first-year classes, but I here's something I do that I think could would work for 1Ls, too. In my Conlaw II class the students do a settlement negotiation exercise using a set of facts that involves several First Amendment issues and some ethical issues. I pair off the the students and assign them a side; there's a set of common facts and then a set of secret facts for each side.

They do the exercise outside of class and then we talk about it in detail class -- both the substantive aspects and the ethical/strategic aspects. I usually assign the exercise about halfway through the semester, so the negotiation exercise serves a substantive midterm review as well as a skills simulation.

The fact pattern is based (loosely) on something I encountered while I was in practice and at the end I tell them (in general terms) how things played out in the real world.

I can imagine flipping the assignment so that the negotiation takes place in class, although I haven't done it that way because I like to let the students take their time with the exercise outside of class and engage in multiple bargaining sessions if they want to.

Posted by: Nancy Leong | Mar 29, 2014 8:53:39 PM

David,

Halfway through the semester, I have my crim pro I students draft a motion to suppress evidence. I give them a real police report. We spend one full class going over what the motion should entail, all the way from the brackets to the substance to the signature line. We then spend another class workshopping drafts. I then grade each motion for substance, format, grammar (yes, indeed), and the law. They end up writing motions that are better than most attorneys. It gives them writing practice, gives them a writing sample, and helps them understand how the abstract rules fit into the real-world context.

My crim pro classes are around 30 students. I couldn't do this if I taught many more students.

Steve

Posted by: Steven R. Morrison | Mar 29, 2014 10:21:47 PM

I love the ideas, here. Because many of the posts here involve negotiation, client interviews and some writing projects, I'm going to selectively repost my thoughts about some of the costs and benefits of those projects, here.

I've been experimenting with a project-based curriculum in my Torts and Administrative Law lectures for some time. The idea has been to selectively use the crucible of litigation as a tool to make the doctrine, policy and theory more concrete, while exposing students to skills that they may refine with more supervision in another class, like a clinic or a simulation-based course. I don't pretend to teach students skills in depth. Having taught small simulation-based classes in the past, I've learned that large courses of 80 or 90 students lack the intimacy necessary for students to take risks, reflect with the professor and their peers, and build upon their skills. But, when done right, I think some skills-oriented projects nicely complement my doctrinal lessons, and visa-versa.

But not every project neatly translates into large doctrinal courses. There can be tensions between good projects that reinforce skills and those that reinforce law or policy. Below the fold, I describe three examples of class projects that, with some tweaks, have worked for me. I'd love to hear what others have done, as well.

1. The Negosh. I enjoy using negotiations in my substantive classes. I've used negotiation exercises in my Torts classes to teach damages, as well as in administrative law to teach negotiated rulemaking. But negotiations are tricky because, in many cases, the law underlying the negotiation may become secondary to other important lessons of negotiation practice: identifying bargaining authority, approaches and ranges, developing questions, thinking through justifications for taking new positions in the negotiation. On the other hand, students negotiating for the first time, for example, tend to make lots of legal arguments--which is good for illustrating, say, the law of compensatory damages for emotional distress, but not so good for learning critical information about your counterparties' motivations or positions, much less arriving at a satisfying negotiated solution.

To adjust, I've made most of my negotiations about information assymetry: thinking about the legally material facts you have, those you don't, those you intend to share, and those you intend to hide. For example, in my Torts class, I ask students to negotiate a settlement in a case that involves an automobile accident. The facts are based upon a famous ethics case—Zimmerman v. Spaulding—where the defendant’s attorney failed to disclose life-threatening information in the negotiation about the plaintiff that the defendant discovered in an independent medical examination. Before class students are (1) divided into defendants and plaintiffs and given memos describing different facts, just like the parties in Spaulding, and (2) instructed to craft settlement strategy and figures in light of the economic and noneconomic loss principles described in their cases. They are also prompted to think carefully about any questions they would like to ask, as well as any information they deem material to share or hide in the course of the negotiation. I ask teams of students to perform the negotiation in front of the class, rotating new students in every two to three minutes for 15 minutes just to make sure everyone is paying attention. A debrief about the negotiation, compensatory damages and punitive damages, then follows.

Invariably, the defendants refuse to disclose the very same information that Zimmerman's attorneys refused to disclose in Zimmerman v. Spaulding. I find that by focusing on the information and justifications students planned on using in the negotiation, we can have both a good discussion about the law of damages (how does one value future income or medical loss, how does one support different numerical valuations for another's emotional distress; and how do such information differences support or undermine the greater interest in punitive damages) as well as the dynamics of negotiation (what did you assume in a negotiation, what questions should you ask, what are the ethical limits of negotiation).

2. Interviews and the "Reverse Socratic". I'm also a fan of using witness or client interviews in class to force students to refine their distinctions between cases. In many cases, I'll ask a friend with a real legal problem or a professor with a fake one, to be interviewed in class. Before class, I'll give students a memo with a brief description of the client's problem, but inform them that they will have to ask questions of the client to evaluate the client's potential liability in light of the day's readings. In many cases, I try to refine the legal problem so that it falls somewhere in between two lines of cases, and spend time with my "client" to think through student questions and answers. During the first 15 minutes of class, I'll ask students to prepare as a group by brainstorming potential questions for the client. A panel of students conducts the interview, subject to the same "tag-team" rule I use in negotiations. The pedagogical idea behind the class isn't very different from the Socratic method -- students must make distinctions and analogies between cases and apply them anew-- only this time, they're asking the questions, in an environment made to simulate the attorney-client interview.
For example, in one class, students receive a memo before class announcing a client visit. We prepare, as a class, to interview the CEO of a corporation sued by former employee’s ex-spouse. The plaintiff claims that her ex-husband uploaded pornographic photos of her daughter through the former employer’s servers. The complaint, based on a real New Jersey case, asserts that had the employers followed up on warnings about this particular employee, it would have discovered the information and revealed it to the mother. Students must ask the right questions to determine how the case compares to Tarasoff, where a psychologist was held to owe a duty of reasonable care for the actions of his patient to a victim, in light of a pending motion for summary judgment. In the process, students learn information that then (arguably) places themselves, as lawyers, in the same position as Tarasoff.

Other interviews may involve expert witnesses (scientific causation in Ernst v. Vioxx), lay witnesses (res ipsa in Byrne), law professors up for tenure (Roth and Sindermann), and institutional clients (Feinberg and the BP oil spill). But, like the negotiation, there are tensions between using this method to reinforce a particular doctrine in tort law--affirmative duties--and to teach client interviews. An important skill in client and witness interviews is to learn how to ask open questions and to listen carefully, before jumping to legal conclusions. And this exercise, in some ways, forces students to do just the opposite. I've refined my approach by asking students to think of the questions as though it were a checklist of issues they would like addressed by the end of an interview, and displaying them on a chalkboard. Then, I encourage them to think about how to ask questions and how the questions they ask impact the information they receive.

3. The Complaint/Demonstrative. I'll also ask my students to craft complaints or demonstratives, with the goal of encouraging them to identify the most material facts in their cases and apply them. In one class, I may ask them to prepare a demonstrative, like a "reasonable alternative design" for a device, in a products liability case. In others, I've asked students to draft complaints based upon the case of Gene Cranick, the man from Tennessee whose home was burnt to the ground, as firefighters watched by, because he failed to pay his $75 firefighter fee. Students receive modified facts from the incident, watch a video interview of Gene, and are divided into teams of 7, given large sheets of paper, and instructed to draft complaints in light of the exceptions to government immunity embodied in famous New York cases like Lauer, Riss, and Cuffy. We then discuss some model student complaints as a class, as a way to draw distinctions, highlight the holdings of those cases, and discuss the underlying policies behind government immunity.

Depending on your view of complaint drafting, this kind of exercise also may present tensions. If you were trained to avoid overcommitting to factual or legal positions in a complaint, you will soon find that students flout that rule as they struggle to create a powerful narrative to frame facts they deem material to their complaints. However, pushing students to trim their complaints to include only the most essential facts necessary to sustain a motion to dismiss can be a valuable exercise. (I do this by posting the most detailed complaint on a wall and asking students what can be cut, without sacrificing the case).

Closing Thoughts

My biggest challenge -- a challenge for any lecture format, but particularly in a project-centered approach -- has been finding ways to ensure that students are able to see the projects, the cases, as well as the theory and policies behind them, as part of a bigger picture. When I first began this approach, students approached me half-way through the semester to tell me that my class was their most difficult course, and that they were drowning. I expected them to not only understand their cases, but immediately apply them to another even-more complicated project. They also complained that note-taking in such a forum was extremely difficult.

After some thought, I've adapted by providing a short, mini-lecture at the beginning of each class, as well as offering my own notes for students to build upon. These modifications mean rethinking what work I expect from the students in terms of note-taking, synthesis, and application. However, I think it's worth it, and that this approach can be applied with modifications to many different courses. Anyone interested in using one of the projects should feel free to reach out to me.

I'd love to hear how others, applying these kinds of methods or others, are doing.

Posted by: Adam Zimmerman | Mar 30, 2014 7:59:05 PM

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