Litigation and Transactional Immersions
Experiential education is not, as some would belittle it, merely skills teaching. Instead, it is the primary vehicle for professional enculturation and a valuable vehicle for teaching law and theory. Learning by doing is more than mere activity-based exercises. Learning by doing is a role transition, in this instance from student to lawyer. Guided activities in role allow students to test and adopt the professional role, with the guidance of an expert mentor and teacher.
There are two immersion courses in our new 3L experiential curriculum, which is required of all students. The fall two-week immersion is litigation oriented while the spring two-week immersion is transactional. The two immersions are offered as one portfolio because both are required of all 3Ls as part of W&L’s third year curriculum and because they share the same overall structure and teaching methodology. While each of the immersions provides the respective foundations upon which the rest of each semester is built, each is separate from the other as well as separate from the rest of the practicums, clinics and externships subsequently offered each semester of the third year.
The two-week Litigation Immersion occurs in the fall of students’ third year. Each student represents either employer or employee in a simple, wrongful discharge matter. Throughout the Litigation Immersion, students play the role of the “clients”, and also represent a client in a separate but similar case. Students were told in advance that their experiences in the immersion program would be free-flowing, and somewhat more realistic and unpredictable than their prior law school experiences, with new issues arising and changes of course taking place as the litigation developed.
During the two-week Transactional Immersion in the spring, each student represents either buyer or seller in a friendly, business transaction: the purchase of a small, family-owned manufacturing business (the “deal”). Throughout the Transactional Immersion, instructors play the role of the “clients” (buyer or seller), with pairs of student “lawyers” being assigned to represent their client, working with a pair of students representing the other side. Students were told in advance that their experiences in the Immersion program would be free-flowing, and somewhat more realistic and unpredictable than their prior law school experiences, with new issues arising and changes of course taking place as the transaction developed.
We designed and teach the Immersions as we do for several reasons. By being separate from the beginning of the students’ other courses, we have their full attention for the two weeks of the immersion. We work with the students from 9 a.m. to 5 p.m., every weekday of the two weeks, and they often have to work at home. They say that the experience is “intense,” “like a job rather than school.” By making the Immersions experience-based, we take advantage of role-based teaching approaches. By being comprehensive (i.e., taking a single representation from beginning to end), we gain the advantages of cross learning of both skills and law.
The course content is a mixture of law, skills and ethics, with the emphasis in the Immersion on skills and ethics. Students represent their clients and are exposed to client-relationship issues; students learn law in order to engage in their negotiations, client counseling and litigation activities/document drafting; students learn skills of interviewing, counseling, negotiation, drafting and in the Litigation Immersion, advocating.
When students learn law in this and other experience-based courses at W&L, they learn law as lawyers do rather than as students do. They learn law to solve a client’s problem or provide a needed service. That is how lawyers engage law. Students, by contrast, learn law to take an exam. That, too, has value, but the transition to a lifetime of engaging law as lawyers do is necessary for adoption of the professional role and mind-set. This is what a third year of experiential education accomplishes.
Because the Litigation Immersion experience tracks a single case from beginning to end, students experience the results of their work: for example, a poorly drafted complaint yields problematic results at a later motion hearing or trial. As a result, students learn not only about the activity at any given time, but they learn about the quality of their work in other aspects of the same representation.
In the Transactional Immersion, students first meet the person playing the role of their client. Then, in small steps, they work through various legal issues in the transaction including the employment of the seller in the new business, treatment of current employees, the nature of the transaction as a stock or asset transfer, indemnities, and others. For each step, they negotiate, consult with their client, manage their client’s expectations, and draft the terms of an agreement. In the end, the students compile the agreement and assess the steps needed to close the transaction.
Lectures / Collaborative/Cooperative/Team Learning / Group Discussion / Simulation / Peer Teaching / Legal Writing
Various methods are used in the Immersions. In the Litigation Immersion, students have large group lectures on a wide variety of litigation-oriented activities, including client interviewing, negotiation, fact investigation and formal discovery, motion practice, and the range of trial skills. In the Transactional Immersion, students have CLE-style lectures on a number of law topics necessary to their work, including employment law, tax implications of the sale of a business, and others.
Students are exposed to the theory and techniques involved in various activities by means of demonstrations and readings. In particular, negotiation demonstrations and readings on drafting pleadings in the Litigation Immersion and contract drafting issues in the Transactional Immersion are important features of the course. Students engage in small group exercises and debriefing sessions.
For example, in the Litigation Immersion, students interview their “clients” and debrief that activity. The same pattern is followed for negotiation, motion work, and trial work. Students draft various documents in the two weeks, including pleadings, truncated sets of interrogatories, and motion papers. In the Transactional Immersion, for example, students negotiate discrete issues in the business transaction and have small group sessions to debrief that individual or team work product. In both Immersions, students have professional interactions with one another and with their clients in role. Assignments can be seen in the detailed syllabus for the course.
Follow Voltaire’s advice: don’t let the perfect be the enemy of the good. Waiting to try experiential education methods until every conceivable kink has been worked out will delay forever the positive that can come from these efforts and course designs. There is a learning curve for teachers who use experiential methods. We can learn from one another’s experience, but just as we are teaching students to learn how to learn from their experience, we must do the same. Roll with the simulation. Have a plan, certainly, but be flexible to teaching moments that arise by virtue of the students’ work. Over time, these moments will become more and more predictable, but in the first iterations of any experiential education course, they will come by surprise. A perceptive, flexible teacher will use them. By the same token, do not let the simulation run amuck. At times, it may be necessary to refocus the simulation if students take it too far off track. When possible, refocus by means of a role activity: that is, instruct the role player/client to do or say something that will refocus the student-lawyers’ work. When this is not possible, be frank with the students and tell them that for education reasons, you are making a mid-course adjustment. Telling students at the outset that something like this may happen will avoid some of their disappointment when the rules of the game change mid-course. Be explicit about assessment criteria. Assessment criteria are meant to be communicative, not merely to allow the instructor to say he or she is assessing. If, for example, you expect students to take risks, tell them that that will be a grading criterion; if you wish for them to be creative, problem solvers rather than mere technicians, tell them so. Their efforts will move in the direction of your announced assessment criteria.
The Litigation and Transactional Immersions have each run three times as of Spring 2012 and will continue to be required for third year students. The opportunity for longitudinal study has not yet arrived. But we have undertaken extensive student reviews both in the form of anonymous surveys and focus groups. We have also discussed the course with seasoned lawyers to gain their insights into the effectiveness of its design. In all measures, the course is a positive force in student development and transition to the lawyer’s role. Extensive logistical changes have been made from the first year it ran to the second and the second to the third. In every instance, we have sought to streamline the delivery of substantive material to students to provide additional time for small group skills drill work and individual client work and debriefing of that work.
Student comments have led us to conclude they value the actual performance activities and small group debriefing more than they value large group sessions that deliver material. Understanding that practice without theory is empty, we have maintained that we must deliver material and theory, but have shortened the time consumed by those efforts in favor of more small group and individual work time.
We have encountered numerous students in the new curriculum, of which the Litigation and Transactional Immersions are a part, who have made dramatic advances in professional role and have learned much about their future in the profession. Some students have concluded that they do not want to do a kind of work they initially expected to enjoy. By this realization, some students are making a first career path change before leaving the law school.