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Monday, May 11, 2020

Providing Real-World Context for the 1L Civil Procedure Course

The following post is by Jack H. Friedenthal (GW), Arthur R. Miller (NYU), John E. Sexton (NYU), and Helen Hershkoff (NYU) and is sponsored by West Academic.

Civil procedure scholars disagree about many things—the scope of pleading rules, the need for liberal discovery, the role of litigation as a regulatory enforcement mechanism. But there is universal agreement that the first-year course is challenging to teach: As the law reviews put it, the course is “hard," “mystifying, frustrating, and difficult” and even “alien and incomprehensible." Civil procedure teachers also agree on the source of the problem: Our students typically lack a real-world context in which to study and engage with the rules and doctrines that they are learning. Numerous teachers have stepped up with excellent books that can supplement the basic procedure casebook, offering simulated case studies, drafting exercises, and practical study aides. Unquestionably these resources can enhance the classroom experience and improve student learning outcomes. Indeed, we reference many of these titles in the Teacher’s Manual to our casebook. The COVID-19 crisis, and the need for many of us to teach remotely, has created additional difficulties for teaching the first-year course as we each incorporate technology into the classroom.


To be sure, teaching and learning Civil Procedure require active engagement both by the professor and the student. However, not every professor is comfortable with technology, and when compelled to teach remotely, might choose to retreat into lecture-style classes. This approach runs the risk of producing rote memorization without maximizing the student’s skill development; at worst, it could stunt the student’s professional growth. Teaching during the pandemic, while the world is shuttered, thus makes it all the more imperative for the teacher to locate and to assign experiential exercises that the students can undertake even while studying remotely; these supplemental materials must be easily accessible on-line and conducive to serving multiple purposes throughout the course. Moreover, choosing from among different exercises must take account not only of a teacher’s individual comfort level with technology, but also the technology that is available at the law school (for example, the “break out” room function on Zoom) and in student living spaces, which in some situations are equipped with erratic or insufficient bandwidth. Recognizing all of these new pressures, we thought it timely to point out the helpful pedagogic tools that are contained in our
Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks, which many of you already use in connection with our casebook. We also will include in our annual Update Memo materials that illustrate how civil procedure is adapting to the pandemic—changes in local rules, the availability of conferencing and oral argument by technology, permission to do constructive service, and so forth.
It’s obvious that the Supplement is an up-to-date source for the Federal Rules of Civil Procedure plus other relevant source materials, such as provisions from the U.S. Constitution, U.S. Code, state constitutions, local rules, and Rules of Appellate Procedure. It also contains edited versions of recent cases of the Supreme Court of the United States. But don’t overlook its utility in providing students with context and opportunities for experiential learning: the Flow Chart of a Civil Action, an Illustrative Litigation Problem with Sample Documents, and the complaints in Twombly and Iqbal. The materials are designed for students at an early stage in their substantive legal education, can be coordinated with reading assignments from our casebook (or from other casebooks), and is compact and accessible.

First, the Flow Chart. As its name suggests, the chart is both a study aide and classroom tool (it originally was designed by Professor Michael Goldberg of the Widener University School of Law, to whom we are grateful, and since has been updated and the graphics, upgraded). The chart depicts the various stages of the lawsuit and marks the different entry points into the rules and doctrines typically taught in the 1L course. Studies show that students learn better if they have images—even simple images—in which to store ideas and information. The chart simplifies procedural moves without being simplistic. The graphics can serve as motivators to learning: Students are encouraged to move forward in the course as they move forward from box to box. Our students did not grow up watching the movie The Blair Witch Project, but they know what it means to be lost in the forest without a GPS or iPhone. The Flow Chart is a kind of map that guides students and helps them map for themselves the strategic advance of a lawsuit.

Second, the Illustrative Litigation Problem. The problem complements the Flow Chart by providing a simulated case file for a lawsuit involving a familiar kind of dispute—a car accident—building on substantive material that many students will be learning in their 1L Torts class. The problem helps to give a general picture of the flow of a lawsuit, and provides sample documents that illustrate how specific procedural rules and issues may arise during the course of a litigation. We find it helpful to point out the problem’s relevance to the particular topics that we are covering in class. So, for example, when we are teaching subject matter jurisdiction, we ask the students to look at Count One of the sample complaint and to discuss whether the complaint includes the necessary allegations to establish diversity of citizenship. Likewise, when we are teaching personal jurisdiction, we ask the students how the evolving standard they are studying, as we move from Pennoyer to International Shoe and on through World-Wide Volkswagen and Nicastro, affects the lawyer’s drafting of the complaint and the facts that the complaint must allege.

Third, drafting exercises. The Illustrative Litigation Problem offers opportunities to have students engage with drafting exercises. These exercises can be done in class or outside of class, individually or collaboratively, and we find it helpful that they be designed with ever-increasing complexity. For example, the question following the amended complaint asks whether defendants, or any one of them, may have the entire case removed to federal court. That question provides the opportunity to have the students draft a motion to remove by one defendant and by all defendants, accompanied by a memorandum of law in support. Similarly, students are asked whether Party B will be successful in challenging the joinder of parties. Students can be asked to draft the motion in opposition together with a supporting memorandum of law.

Civil Procedure is no doubt challenging to teach. One of the hardest parts is helping the students to appreciate how even small, seemingly technical changes can impact rights by raising the costs of enforcement and creating barriers to relief. Making sure that the students have a clear sense of the stages of a lawsuit and how different procedural opportunities inter-relate is an important start, and we believe that the Flow Chart provides a useful pedagogic aide in achieving that goal. Likewise, engaging with simulated lawyering exercises that illustrate how the rules operate in action reinforces student learning, and the Illustrative Litigation problem offers a convenient mechanism. We welcome your suggestions about how to teach the course and how to improve the Supplement so that it meets your classroom needs.

Posted by Howard Wasserman on May 11, 2020 at 03:26 PM in Civil Procedure, Sponsored Announcements | Permalink

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