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Weinstein, I --- "Teaching Reflective Lawyering in a Small Case Litigation Clinic: A Love Letter to My Clinic" [2007] LegEdDig 25; (2007) 15(2) Legal Education Digest 16

Teaching Reflective Lawyering in a Small Case Litigation Clinic: A Love Letter to My Clinic

I Weinstein

[2007] LegEdDig 25; (2007) 15(2) Legal Education Digest 16

Suff U Law Sch Research Paper No. 07–08, pp 1–26 & NYLS Clin Inst Research Paper No. 06/07–12

The most significant structural element in our clinic design is the choice to present our students with real clients — people who have actual legal problems. This is the heart of what is commonly known in clinical legal education as a live client clinic. This model is most often distinguished from the clinical teaching format that uses simulated matters or cases.

Taking on responsibility for others, as a professional, is thus the key to my students’ moral and emotional development. Although theorising about having responsibility for another and navigating the authority that comes with professional expertise are valuable endeavours, the actual experience usually involves some surprises.

Clinical work with clients also offers a powerful opportunity to experience and understand the moral dimensions of lawyering. As a theoretical matter, many of my students agree that morality demands that we respect our clients and treat them as we ourselves would want to be treated. But as with our emotional reactions to clients, we are not always so good at predicting how these basic moral demands will play out in our actual practice. Live client clinics place us in relationships with autonomous others, who are intrinsically entitled to respect and regard, thereby giving us a laboratory for moral action.

In our clinical work, we have the chance to live and reflect upon our values as we interact with people who are naturally ends in themselves and not just a means to educate our students and do our jobs.

Because respect is a central and complex aspect of successful lawyering, it is worthy of considerable reflection. Dealing with real people provides infinite grist for that mill. We need not speculate on how some hypothetical person might act, decide or feel in a given situation; we experience a particular person together. Although there are many uncertainties and barriers to fully understanding all the other people with whom we interact, at least we have a particular instantiation of the human condition upon which we can all focus.

With these ideas in mind, my colleagues and I endeavour to respectfully understand our clients at the very start of our clinic, in the hope of setting a theme for the experience. Therefore, even in this live client clinic, we begin with a simulation.

In our first seminar meeting with our clinic students during the first week of classes, we simulate a client interview. For this first class, an actor plays the client. In this way, the students tend to see this simulation as more ‘real’ in the sense that it involves a person from outside the law school. We let the simulation run for perhaps ten minutes and plant a suggestion of a mental health issue in the midst of a first interview of a client facing a misdemeanour charge and who is likely to be released. Once the actor steps out, we divide the students into groups of three or four and ask them to identify the client’s primary need and suggest three ways to address that need. Each semester we have a different version of a fruitful discussion in which at least one, and usually several, students express some doubt or skepticism about something the client has told us.

It is essential that young professionals recognise that for the majority of clients, most, if not all of their behaviour toward the lawyer has nothing to do with the lawyer, particularly if the lawyer is reasonably skilful in their professional role. Rather, clients’ behaviour has everything to do with what the client brings to the situation. So right from the very start, we look for opportunities to discuss what the students saw and heard that makes them think the client may not be telling the truth and why that might be happening. We aim for a discussion that offers a range of possible reasons and also includes some analysis of why the explanations could make a difference in how we proceed and what that analysis tells us about how we should identify and prioritise our next steps. In other words, I hope for a discussion that stays focused on our client and what he or she needs from his or her lawyer. While I think it quite important to recognise the feelings the student may have about the interaction, my purpose in discussing their feelings is to help them recognise the many ways our emotions pull us away from focusing on our clients, not to analyse and adjust my students’ feelings.

Much as we work to make our clients stand out as individuals with particular stories to tell, our cases move through the system in a predictable way, presenting different versions of a relatively limited set of substantive and procedural problems.

One virtue of working on these small, predictable cases is that they require a relatively small set of simple schema. We have identified a modest field of explicit knowledge and an even more limited field of implicit knowledge that can be gained in a semester and appears to advance almost all of our students to a reasonable degree of expertise in this subdomain. This expertise empowers our students by giving them concrete experience with what becoming an expert feels like and requires.

I have come to understand that the cases in our clinic can usefully be divided into three stages for teaching purposes. First, we meet our clients and learn about their situations. This stage corresponds to the arraignment and investigation phase. Our primary pedagogical goal in this phase is helping the students develop a model for using the law to guide factual development.

Once we have developed a well grounded understanding of the facts, we move on to the second phase, which focuses on strategic analysis and planning. In this stage, we aim to help our students develop schema that will enable them to identify appropriate goals for the case and make strategic choices consistent with those goals.

Each of these stages is complex enough to offer a wonderful learning opportunity, but simple enough so that almost all of our students are able to develop useful cognitive models, or schema, during each of the three phases of the semester.

The methodological ‘whole’ we want our students to see in the first phase of our clinic is the reciprocal relationship between fact and law. The schema we want them to build is one in which the facts of the case shape the questions we ask about the law and the law shapes the facts we seek and how we interpret them.

Before the simulation, we distribute the complaint filed in the simulated case. During our discussion of the simulation, we reference how the interview is shaped by the language of the criminal statute (factual details about the incident), the procedural posture of the case (lawyer’s description of what is likely to happen next), and the law of bail (details of the client’s background and current situation).

We are careful to remind our students, and ourselves, that the client and his or her particular situation are the central facts in any case. We try to model reading the law in ways that make the case about this unique individual, rather than reading the law to standardise the client. What happens next in the case has to be viewed in the light of what our client wants and needs, not in the light of what ‘usually happens’ in this sort of case.

As the semester moves through the first five or six weeks, in which the students simulate initial client interviews and arraignment and then do their first live client arraignments and initial investigations of those first cases, we reinforce the reciprocal relationship between law and fact. Bail argument simulations offer one of the many wonderful opportunities to illustrate this point.

In our cases, bail arguments are good teaching and learning tools because they are small in scope, controlled by a detailed statute, based on rich facts to which we usually have very good access (our clients know a good deal about themselves), well understood by the teachers, and can make a real difference in our cases.

Our focus on the interrelationship of fact and law continues as we move to the charging statute to orient our investigation. Because the research universe is limited, our students are able to gain, or reinforce, a fairly complete version of the relevant explicit knowledge they will need in a relatively quick amount of time.

The relative simplicity of the legal problems also has an effective payoff in encouraging our students’ development as problem solvers. Most of my students take their responsibilities very seriously. Many of them are so anxious about the responsibility they have taken on that they seek refuge in claims that they do not know enough about or cannot properly analyse with respect to the problem at hand. In the course of working with these small scale problems and cases, reality can test those feelings in a pretty straightforward and useful way. My students get better results than they expect with some regularity and that motivates them to be good, tenacious lawyers.

Of course there are downsides to working on these small legal questions. They do not offer opportunities to explore strategies for dealing with the many very complex, much more open-ended problems that students will encounter in practice. Nor do they help students develop sophisticated research skills or open them to nonlegal modes of analysis.

After we have developed a useful understanding of our clients’ problems and the potential solutions we might pursue, we are ready to choose among those solutions. In our practice, as in any criminal defence practice, evaluating the plea offer is central to charting a strategic course.

Our class on evaluating plea offers comes around the fifth week of the semester, after we have started picking up new cases, while our students are investigating their cases. Once we understand the range of options, we relate them to our client’s particular goals and situation.

After that introduction, a team of students introduces a new client and describes his or her case. They either report upon, or we hypothesise, a plea offer. Then we ask the students: Is the plea offer a good offer or a bad offer, and compared to what? We introduce the idea that a more useful frame of reference is to compare the plea offer to the discounted value of the charge. In other words, how likely is it that the prosecution will be able to secure a conviction on the charge? What would happen in the event of conviction? How likely are a range of other outcomes? From these suggestions, we introduce decision tree analysis and chart out the possible actions we might take at each node of the decision tree, the possible results, and the likelihood that the case will take that particular path.

The third phase of our clinic seminar includes pretrial motions and dispositional advocacy, the core of the criminal litigation in which we usually engage. In this section of the course we aim to use the students’ developing understanding of the fact/law connection and strategic thinking to help them plan and execute effective tactical moves in litigation.

As we conceive the tactical dimension of litigation, it has two components. First we must be clear on how to execute a given tactic, which might be a motion, an episode of advocacy to a judge or adversary or a trial.

Our students learn about motion practice by meeting as a team and writing a memo discussing whether and how they would draft a pretrial suppression in one of their cases.

After motion practice, we turn to dispositional advocacy, which is our version of plea negotiation. We encourage our students to seek dismissals, adjournments in contemplation of dismissal, and other resolutions that differ from the common plea to a slightly reduced charge.

Like many other clinicians, my colleagues and I are frequently tempted to take on new matters and expand our docket. I am always a staunch advocate of refusing new work. I resist the call to serve more clients and remain focused on our teaching and learning mission. We strictly limit the number and types of cases on our docket and we place little emphasis on the goal of meeting the needs of the many underserved people in America.

I used to teach in a mixed civil and criminal litigation clinic. Our docket included high-stakes federal criminal cases and a mix of complex civil matters. When I taught in that clinic, I litigated some big and interesting cases, but my students had a very uneven experience. Some thrived in that rich and demanding context. But other students did not thrive. For some, there was just too much going on.

I feel a strong obligation to each of my students and the real test is not whether the strongest learners among them benefit from the clinic. The most important question is whether I can reach those students who may not be such strong learners, or those who may not have yet found their way in law school.

In the fullness of time, I have come to accept the defence lawyer’s position as an outsider. We make ourselves outsiders by defending people who are accused of transgressing against society’s rules and values. Our professional role places us in opposition to the community’s widely shared desire to identify and punish the guilty. There are many good reasons for lawyers to take on this role, and the criticism that often comes with it, but for now I want to focus on the experience my students have as outsiders, defending those accused of wrongdoing, as they begin to practice criminal defence. For many, the experience is powerful and surprising, helping them learn about themselves, about the law, and about being lawyers.

Although any area of practice will give us opportunities to uncover and challenge our assumptions, criminal defence work provides a particularly rich context because so many come to it with so many biases. We are all influenced by the contemporary tendency to vilify all people accused of crimes and polarise the world into innocent victims and predators.

Despite my students’ many critical insights about the law, they often start their semester in the clinic with the underlying assumption that the law is a logical, seamless, and apparently self-executing web.

My students’ notions of how the law works expand during their time in the clinic. They see the often tenuous relationship between the law’s dictates and the actions of the trial-level judges before whom they appear. My students see how procedure and practice can overwhelm the substantive law and how individual actors can powerfully shape outcomes, sometimes informed by the shadow of the law and sometimes in the bright glare of pure power. While clinic students can learn these lessons in any trial-level setting, the criminal defence perspective is a particularly good vantage point from which to appreciate the benefits of — and the difficulties with — discretion and legal indeterminacy.

Criminal defence work is also a wonderful vehicle for exploring professional motivation. For most, it is not self evident what would motivate a person to defend those who have harmed others and done wrong. Criminal defence lawyers offer a variety of explanations for why they do the work. Some believe that the power of the state should be constrained and monitored, while others distrust authority and are naturally drawn to challenging the police and prosecutors. There are also those who see the work as essentially political, representing and empowering the underclass and sifting out the innocent.

The empirical reality of our practice is that, despite police aggression in some communities, most of our clients have violated the law. Many of our students start the semester motivated by the idea of factual innocence. They are uncertain, as they should be, about how to respond when a client admits his or her guilt immediately, or when the investigation turns up stronger evidence of culpability than what the prosecution alleges. These are important moments in legal education that help a law student become a lawyer.

In the end, I think the success of our live client, small case, teaching and learning centred, criminal defence clinic in an urban setting is rooted in our shared seriousness about and joy in the practice of law. Over the past few semesters, we have created a context in which our students can reflect carefully upon a set of experiences important enough to care about, but not so important as to overwhelm them; complex enough to learn important lessons from, but not so complex as to impede seeing them whole in a semester. By placing our students in professional relationships with people who are facing difficult situations, we give them the opportunity to think through and feel morally and emotionally complex situations in a supportive, controlled setting. Because they are smart, able people, they face the challenges our work poses and grow during our time together. Our live client, small case, teaching and learning centred clinic in an urban setting is a traditional clinic that works.


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