State Civil Procedure
Students enjoy learning, and thus learn more effectively, when they realize that the subject we are studying matters in real life. In each topic, I try to weave in how it relates to law practice. Thus, I send an implicit message that what we’re studying is important—and, by extension, that I care about what they are studying. If I care now and future clients will care, students are more likely to care themselves. Students respond to such motivation.
Upper Level / Carnegie Integrated Course / Required / Legal Writing
50 students per semester
First use of this course: Spring Quarter 2009
Last use of this course: Spring Quarter 2011
State Procedure is crucial to law practice. Twenty million civil cases are filed in state courts per year. Students knowing how to take a civil case from the first meeting through trial, and also know the ethical challenges involved, are far more ready to practice than those unfamiliar with state civil procedure. I developed this course by integrating Carnegie’s Apprenticeships of analysis, practical skills, and professional identity formation. To teach it, I wrote the casebook, Civil Procedure for All States. With this casebook, the course includes traditional material—doctrinal and case discussions, but it breaks sharply from the mold of a typical doctrinal course. Students are given practice problems, perform writing assignments as if lawyers, and answer professional identity questions in each chapter to better assist them with the inevitable ethical struggles they will face as lawyers. Pedagogically, these practical assignments are better than just a final exam because they continue to reinforce materials covered, and the professional identity questions lead students to value choices they can live with. Teaching the course in this manner accomplishes two goals: 1) students retain more and are better equipped to apply it in practice; and 2) students leave the course with a better sense of their values and what kind of lawyers they want to be.
State Procedure is the process of resolving civil cases in state courts. Students are able to see stages of a civil action as separate units and as a whole, while also mastering rules and doctrines necessary to handling civil suits. By the end of the course, students have a better appreciation for the rules and how they are practically applied every day in practice.
As a bridge between law school and practice, the casebook, Civil Procedure for All States, addresses students as actual lawyers. To transition from law student to lawyer, students must engage in the thinking, strategy, and judgment effective litigators embrace as part of practice. Students are challenged to think like lawyers not just by analyzing the Master Problem (used in each chapter of the casebook), but also in resolving numerous factual hypotheticals called “Practice Problems.”
The course does not limit itself to procedures of one state. Each chapter describes the majority approach to a procedural doctrine, the significant minority approach, and those states unique in their approach. Thus, the student identifies the decision-making steps a lawyer must take in handling any case, in any state. Students must then ask the strategic questions that a lawyer should be asking at each stage of litigation as it progresses.
The Master Problem allows students to have a case to which they can return as they progress through each stage. Students are placed in the role of a new associate. In progressing through the lawsuit, the course includes representative case law, but relies more heavily on a problem-based method of teaching. Practice Problems offering true-to-life fact patterns give students chances to apply the law to fact patterns and reach conclusions. Students are asked, in answering a problem, to research the law of their state in determining an answer. Thus, students also reinforce the research skills necessary to law practice.
Lectures Collaborative / Cooperative / Team Learning / Group Discussion / Simulation / Socratic Inquiry / Legal Writing
Each chapter has multiple written assignments. For example, students may conduct a client interview or to prepare a memo to a senior partner analyzing the statute of limitations. Other examples include drafting pleadings and discovery, developing discovery plans to marshal evidence needed to survive summary judgment, drafting jury instructions and virtually every task a litigator may perform. I offer regular, graded feedback on each assignment. Each chapter, moreover, integrates “Professional Identity Questions.” These recognize that professional identity involves more than legal ethics. Students are challenged to recognize that, although the client determines the ends of representation, lawyers have great discretion in determining the means by which they will handle the representation. Thus, many of the questions are not purely legal ethics questions. Students are required (as part of their grade) to keep a Professional Identity Journal in which they reflect on these questions, and they are periodically turned in. The Journal counts for ten percent of the course grade and, if a student makes a good-faith effort, they receive credit. Grades derive from four components: 1) mandatory professional development work and essay (10%); 2) written assignments (25%); 3) class preparedness and performance (10%); and 4) performance on the final examination (55%).
- Be transparent. Let students know your expectations, why you have designed the course as you have, why you use different teaching methods, and that you may not have all the answers but will help them learn the subject to the best of your ability.
- Emphasize learning as a collaborative effort. Tell students you will do your part, but that class time is one piece of the learning process. They must prepare ahead of class and assimilate classroom time if they want to master a subject.
- Encourage students. More than we realize, many set “limits” on themselves in terms of what they think they can grasp, do, etc . I share with students my own experiences in which I realized I thought I was not able to do something (e.g., handle an accounting fraud case) but, because a more senior lawyer believed I had the skills necessary, I was able to do the job. Some students just need the professor to encourage them to stretch beyond their perceived boundaries.
- Use a variety of teaching methods. Start small and one may find that it’s easier than one thinks. I now challenge myself to use at least two every class. Of course, the verbal method is taken care of in the reading material and questioning students on that. For the visual method, I may use a diagram, a PowerPoint slide (usually under 10 slides), or just write on the Blackboard. Some times, I have students take five minutes to stop and compare notes with the person next to them on a question and then ask what answers they found. Some would call that a “doing” or tactile or kinesthetic form of learning experience. I used to think that these “alternatives” to the Socratic were beyond my ability to employ. I know now they’re easier than I thought, and most students enjoy the change of pace. Some students, whose learning styles are more fitted for non-traditional law classrooms, benefit even more greatly.
- Have fun. I try to let the students know that law practice—and the study of law—became a lot less stressful for me when I stopped trying to take it all so seriously—and started to have fun with the process. That has been the area of trial and error for me, but I’m glad I took the risk. I don’t make fun of persons, ethnic groups, injured persons, etc.—but I do find ways to ponder how people get themselves in such “messes” that they need a lawyer. I use “props” in class, such as a toy train to demonstrate the facts of train accident cases. Things like that, which seem small (some may say “beneath” a law teacher) have turned out to be some of the best ways I’ve found to engage students.
Because I provide regular, graded feedback on each writing assignment, students are able to determine how well they are learning, and I am able to assess how effective my teaching methods are. As for the Professional Identity Journals, I often end up talking with students about their approach to a particular issue. Based on these assignments, it has been my experience that students leave the course knowing the procedures at each stage of litigation and realizing that they must make strategic decisions far earlier in a case then they ever realized. In short, they recognize the decisions that must be made at each state and the opportunities to proactively advance a client’s cause. At the same time, students are empowered by realizing that they can determine the “means” by which they handle cases—i.e., conduct themselves in a way with which they can feel good about themselves.