Family Law with Skills
As educators, we need to develop not only our students’ analytical ability, but also their ability to listen, to counsel, to help people in crisis make wise decisions. Law students should feel they are part of an honorable and useful profession when they graduate and be equipped for lifelong reflective learning. While a challenging task for us, it is not an impossible one.
Professor Herbie DiFonzo
Student Perspective40 students per semester
First use of this course: Autumn Semester 2008
Last use of this course: Spring Semester 2011
Family Law with Skills covers the same core legal doctrine material as the traditional family law course. The curriculum also incorporates required field observation and simulated exercises to introduce law students to the essential skills and values emphasized by the Carnegie Report and the Family Law Education Reform Project Report.
Effective family law practice is challenging and vital. Family law cases are about 25% of state court dockets and often shape the futures of parents and children. Family law has experienced sweeping doctrinal change in recent decades- e.g. from fault to no fault divorce, from closed to open adoptions. Practicing family lawyers must know that doctrine but must also have astute emotional intelligence and be able to work in a stressful environment, often at low compensation and with little prestige. They must be able to work with other disciplines such as psychologists, social workers and financial planners. They must be familiar with appropriate dispute resolution- mediation, neutral expert evaluation and parent coordination- which have taken deep root in family law practice. They must be prepared to work with self-represented litigants and resolve ethical dilemmas on an almost daily basis.
In the future I would like:
- to make the course available to other family law professors by publishing the materials and providing support for those who wish to teach similar courses
- to extend the philosophy of blending skills and doctrinal teaching into other areas of the law school curriculum such as civil procedure and pretrial litigation
- to continue to create a comprehensive family law curriculum for which Family Law with Skills will be the foundational course, but which will include more blended skills development and doctrinal offerings. We have many of the pieces of that curriculum in place already.
This course is an upper level, elective practicum that meets requirements for a Carnegie Integrated Course. It is co-taught by Andy Schepard and Herbie DiFonzo.
In addition to the traditional content of a family law course, we require students to:
- observe and report on proceedings in a family court: and
- participate in three sets of extended simulated skills exercises; Divorce Based Skills Exercises (interviewing, counseling, negotiation, and mediation representation), Child Protection Based Skills Exercises (Direct and Cross Examination of a Social Worker) and a Surrogacy Based Exercises (Drafting Skills).
The court observation
A three hour family court observation and a reflective paper are a mandatory course requirement. We ask students to describe what they observe in some detail and to reflect on the following:
- How did the family court that you observed differ from what you expected? What was the same?
- What did you observe about the clients, their lawyers, the judges, and court personnel both positive and negative?
- Based on your observations and the course material, what proposals would you make to change family court operations or procedures? Why?
The simulation exercises
The divorce related interviewing and counseling exercises introduce students to fact gathering and relationship development through “active listening” to clients. Students are required to discuss confidentiality obligations and fee arrangements with clients at the initial interview. The client counseling exercise also focuses on client-centered counseling – empowering clients to make informed choices among responsible options. Student law firms present their “counseling plan” to their senior partner (a lawyer from practice) who answers questions and makes suggestions. They then counsel their client, receive feedback and write a self evaluation. The negotiation exercise introduces students to the benefits and costs of different lawyer negotiation orientations, i.e., namely “problem solving” and “positional” negotiators. The mediation advocacy exercise requires students to participate in mediation and rotate playing clients and lawyers.
The child protection exercise, offered in conjunction with the Hunter University School of Social Work, focus on courtroom advocacy. Law student teams of two represent each of the parties and call witnesses where they develop their “theory of the case,” practice witness preparation (including ethical challenges) and then practice witness examination and testifying. Law and social work faculty provides feedback to each participant jointly.
In the drafting skills exercise, the senior partner asks the student law firm to review a draft surrogacy agreement riddled with clauses that are difficult to understand, and many of which are inapplicable because they are taken from a formbook and are not personalized to the needs of the clients. Student law firms submit memos that provide detailed advice from which key passages are selected for class discussion and concrete suggestions for improvement are provided.
Lectures / Collaborative/Cooperative/Team Learning / Group Discussion / Simulation / Peer Teaching / Socratic Inquiry / Legal Writing
The skills exercises that are critiqued by me, faculty colleagues, members of the family law bar who serve as senior partners of their law firms. The students also provide feedback to each other and conduct self-evaluations. On the court observation reports, we go through their written work and pick 3-4 at random to serve on a student panel.
Exams are still a significant portion of their grade. Student performance on the skills exercises is not graded on the same curve that we use to grade their final examinations. We do not want students to be afraid to make mistakes or to experiment. We inform the students that if they participate meaningfully in each skills exercise, and contribute meaningfully to the work of your law firm discussion, they will receive credit for participation.
- Course sequence is critical. I had to carefully define what doctrinal and skills and ethics related material had to be taught before students could meaningfully perform the skills exercises. For example, it did not make sense for students to interview and counsel a client before they had an adequate framework in divorce law and in active listening and client centered counseling and interviewing technique.
- You should not think of yourself as the sole teaching resource. The clinical faculty at our law school participates actively in the teaching of Family Law with Skills, as do lawyers from practice and former students. It takes time and effort to organize and train them, but the result is an educationally exciting course that introduces students to a fascinating world of practice.
- A course administrator greatly helps keep the many moving parts of the Course synchronized. We ask one of our best second year student to serve as the course administrator for the following year (3rd year).
One outside indicator of effectiveness is from the senior partners’ commitment to working with our students and their praise for them. The senior partners have hired several of the students they have observed.
Another effectiveness indicator is that the students like this course even though they have to invest much more effort in it than in the three credit case book traditional course. The Hofstra evaluation forms have a numerical component and a section where students can make free form comments. The anonymous student feedback indicates that the course helped them to appreciate the importance of family law and lawyers. Students have expressed that this course is much more hands on and interactive and that it gave them “the opportunity to apply what I learned in the classroom in a practical setting and to interact with individuals from other professions that collaborate with family law lawyers on a daily basis.” Students have also reported that they appreciated the integration of skills practice, court observation, and substantive doctrine because the combination “put the material in context, and allowed me to gain a different perspective” and “gave real insight into the challenges of the court system and client issues.”
In 2009, on a scale of 1 to 5, the students rated Family Law with Skills 4.61 on the degree to which the course improved their ability to analyze legal problems; 4.76 on the degree to which the course taught a great deal about this area of law; and 4.68 on the degree to which the course made a valuable contribution to their education. Overall, an overwhelming majority of the students enjoyed the class because of its real world applicability.