Diary of a Nutty Professor

I'll admit it: I'm a crazy Torts professor. That's me on the right, waiving my toy electric chainsaw over Ernesto's head to illustrate the tort of Negligent Infliction of Emotional Distress.  (Ernesto missed class that Tuesday). And here's me, performing the world's worst Ken Feinberg imitation for the New York Post--in a bald cap, no less--to illustrate how the BP Fund might compensate fisherman and hotels under different state laws. And over the past few weeks, I've dressed up like Iron Man (a lesson on intentional misconduct); threatened to spray students with silly string (assault and battery) or seltzer (overdetermined causation); and in return, I've been shot in the face by a student with nerf gun, while another student put me in a full nelson (joint and several liablity).

Yup, I'm that guy. And it's not because  I'm an immature person determined to humiliate himself -- even though I probably am and I certainly do -- but instead because I've long believed that some stunts reinforce concepts that stick with students, while bringing life to a late afternoon class.  Stunts also serve as a warm-up for the main event in some of my classes.  That is, in many of my lecture courses, I ask students to apply their readings to projects typically associated with "skills" oriented classes: interviewing a witness or client, negotiating damages or a new administrative regulation, drafting a complaint or an exhibit, or engaging in oral argument. 

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.