Kang, H H --- "Use of role play and interview modes in law clinic case rounds to teach essential legal skills and to maximise meaningful participation" [2013] LegEdDig 29; (2013) 21(2) Legal Education Digest 46

• Use of role play and interview modes in law clinic case rounds to teach essential legal skills and to maximise meaningful participation

---

Use of role play and interview modes in law clinic case rounds to teach essential legal skills and to maximise meaningful participation

H H Kang

Clinical Law Review, Vol. 19, No. 1, 2012, pp 207-250

Law clinic rounds are meetings of all of the students in the clinic and their supervising attorneys, including the clinic professors. In these rounds, which occur periodically, the participants exchange information about the projects on which they are working, discuss issues they are working through, identify next steps, and ask their classmates for assistance in thinking through the issues in the case.

With law clinic rounds, the instructions that students receive beforehand vary quite a bit, from requiring very little preparation (in fact none other than involvement in a clinic case) to extensive. For example, our clinic’s case rounds a decade ago much more resembled a law firm meeting, where students were not required to prepare in advance but were told that they were expected to talk about the case they were handling, recent developments, and next steps in a conversational, unstructured manner. Other clinics, on the other hand, provide specific, written instructions on the types of issues to cover. This approach is similar to the one that our clinic now requires for the students’ very first case rounds – that students be prepared to provide a brief overview of their cases, including information about their clients, the clients’ goals, the case status, and expected next steps.

Many rounds, especially regularly occurring rounds, are purposefully unstructured – or relatively so – to give students room to talk and to learn as events occur. Giving this kind of freedom to students is essential to their learning because aspects of law practice that these novice student practitioners themselves might reveal as important may not necessarily be those that the professors may identify as a topic of discussion: what is obvious to us professors may not be obvious to the novice practitioner, and this gap may provide an important opportunity for instruction.

In sum, rounds that are relatively unstructured capitalise on teachable moments that naturally occur during the informational exchange. In contrast, highly structured rounds may discourage these discussions that lead to valuable insights because the participants may think that these issues stray too far from the agenda.

Aside from rounds that rely on developments in the case to provide fodder for the ‘aha’ moments that teachers find rewarding, some rounds may also explore specific topics or a given case in depth. In addition, there are rounds that are called ‘case presentations’, which are made by students about their cases and provide a forum for the presenting student to practice their presentation skills and to seek their colleagues’ advice.

Rounds may also differ in the frequency with which they occur. Some clinics hold rounds almost every week, whereas others hold them just a handful of times per semester.

In addition to serving as a forum for discussions between student peers and their more experienced professors, rounds in many clinics also appear to serve the functions of – and take the form of – meetings that any organisation typically convenes.

The essence of rounds is the communication that takes place among the student-lawyers and their supervising attorneys (including, of course, clinical law professors) who comprise the law firm. This communication is essential in most clinics because they operate as law firms, and their members must communicate about what the law firm is doing. Such meetings make communication within the law firm efficient by providing a forum where information is exchanged among the members of the firm.

A discussion board or email may arguably be more efficient for communicating a majority of the information that law clinic students and professors must have to be a team on a case. The reason that rounds happen face-to-face is, however, to focus on the interaction, not simply on transmission of information.

Information sharing in these rounds typically occurs in the form of a presentation where students describe the basic facts and status of their cases, what has happened in the case since the group last met, the particular decision at issue, and the next steps the student expects to take in the case. (Because these rounds involve case presentations, clinical professors might use the two terms, case presentations and rounds, interchangeably). If there are significant developments in the case such as a court appearance, the student in charge may give a lengthier report.

Rounds provide a face-to-face opportunity for novice professionals to observe the many reactions of their classmates to the factual, legal, social, emotional, and political dimensions of their cases. That is, to the extent that advocacy depends on how the audience reacts to the advocate’s presentation, the classmates’ empathy, agreement, puzzlement, or even anger may signal the strength or weaknesses of the case, and such reactions may give the advocate an opportunity to adjust the presentation. What students learn in these face-to-face interchanges is that the legal force of an argument does not alone make a case.

Regular meetings also serve to affirm the group’s identity and the participating individual’s sense of belonging to the group, and clinic rounds serve to affirm the students as practising law together with other students. By getting a larger picture of the clinic docket, the students may be able to see a correspondingly broader picture of what the clinic is trying to accomplish for its various clients. For example, the cases in our clinic may involve different administrative agencies and different forums, but students see that there is a theme to the cases we handle: fossil fuel based energy generation hurts low-income communities and communities of colour.

Beyond communicating the basic facts of a clinic case, rounds broaden the students’ experience, and provide a teaching opportunity for skills training and teaching substance and procedure. Rounds expose students to cases beyond the ones they are handling that often involve different legal and factual issues, clients, and procedural postures.

In clinics that handle litigation or engage in long-term policy work, rounds provide students with the opportunity to see the full potential progression of their cases through other cases, even though in a given semester, the students may not be able to see how their own cases play out. They may be able to infer from the progressions of other cases what could happen in their cases in the future.

Case rounds also provide an opportunity to teach substantive law in context. In our clinic, where the docket includes cases that are in both administrative and judicial forums, case rounds provide an opportunity to teach administrative law and civil procedure. Because many students are not intensely exposed to statutory and regulatory schemes by the time they arrive at the clinic, case rounds can expand the students’ knowledge and, in the context of real cases, provide opportunity to test and apply the lessons students learn in other courses.

While rounds have become an essential part of clinic instruction for all of the educational opportunities they offer, there are inherent challenges. Some of the challenges include engaging the quiet student, as well as students who are not assigned to the case that is being discussed. Another challenge is ensuring that professors provide enough structure so that these rounds, which tend to treat clinical problems as they arise, maximise their educational potential. Finally, clinical professors face the challenge of allocating class time between skills and substantive law training, on the one hand, and rounds, on the other: there are so many substantive subject areas and skills that students must learn that case rounds, despite the educational value that the professors may recognise in them, may be neglected.

Case rounds that simultaneously combine several functions – such as sharing information about the clinic docket and skills training – and use designs such as role plays can overcome some of these challenges. These multipurpose rounds can provide a safe forum for students to learn and practice essential lawyering skills while delivering as much educational value as traditional rounds.

We use a role play in which a student presenter assumes the role of an opponent in her case, with her classmates assuming the role that the student or her client normally plays in the real case. The presenter’s classmates (sometimes referred to in this article as the ‘audience’) find out the facts of the presenter’s case mostly through the presenter’s answers to questions.

These rounds simultaneously provide information about case status, teach skills, and provide the learning opportunities that are unique to rounds.

A necessary starting point for determining the kinds of rounds to hold is to determine the professor’s ultimate goals for the rounds. It may also be necessary to do an assessment of the students’ skills to determine the students’ needs.

For our clinic’s role play rounds, I had in mind a list of goals based on an assessment of my students’ needs and a set of strategies to achieve my teaching goals.

1. Students must understand the nature of persuasion and storytelling. Goal: Competent entry-level lawyers must understand the nature of persuasion and storytelling. Potential Strategies for Achieving the Goal: Provide reading and explicit instructions asking students to think about storytelling modes. Make time to discuss and reflect on story lines that worked and why in a debriefing session after students have a chance to tell their stories. Instructors can also ask students to identify an occasion when someone else was successful or unsuccessful in persuading them and describe why.

2. Students must understand the other party’s arguments and motivations and prepare an effective response. Goal: Competent entry-level lawyers must understand the other parties’ motivations, goals, perspectives on facts, and legal analysis. In other words, effective lawyering involves understanding the other side’s story, and responding to it effectively. Without this preparation, lawyers can fail to effectively anticipate and deflect opposing arguments, engage in preparatory factual and legal research, and apprehend the true terrain of the client’s battle. Potential Strategies for Achieving the Goal: Have the students assume the role of the opponent or some other party involved in the case. Students should reflect on the experience to see how they saw the case differently after the presentation.

3. The presentation should be logically organised and contain critical and relevant information. Goal: Lawyers are called on to make presentations of all kinds, most of the time to people who know less about the case than they do. Poor organisation or delivery ruins even the best story, as we all know. In addition to organisation, competent lawyers must pay attention to the key elements and the potential trajectory of their case. The presentation should thus ideally convey accurate information about the client, the client’s goals, the procedural posture of the case, legal and factual issues (both helpful and adverse to the case), and next steps. As Professors Krieger and Neumann explain, there are at least three models of organising facts: by legal elements, chronology, or through a story mode. Students should begin to experiment with different modes of storytelling to learn which works best for their stories.

Another important aspect of giving a presentation that novices neglect is the importance of practicing a presentation to ensure that the information that must be delivered can be delivered within the allotted time. Potential Strategies for Achieving the Goal: Provide explicit instructions that set forth the professor’s expectation about organisation and content. The professor may require students to read about the three models of organising facts. Mostly, however, providing students with an opportunity to give presentations and to reflect and assess how they could be improved should lead to developments in both the content and delivery of the presentations.

4. The audience should be fully engaged. Goal: The instructor should create a forum in which the audience is comfortable participating. Ideally, the audience should participate by paying attention to the content of the presentation, actively thinking about the case, and contributing to identification of legal, factual, and ethical issues that the presenter must consider to represent the client effectively. Potential Strategies for Achieving the Goal: Rounds should be formally structured as a session in which relatively short answers follow the listeners’ questions. Short answers from the presenter are critical because overly long answers often fail to engage the other participants.

5. The audience should learn the art of asking good questions, and the presenter should pay attention to what the questions reveal about the presentation. Goal: Good questions bring to the surface unexamined assumptions; introduce the potential for different interpretations of facts and inherent ambiguities in certain facts; and highlight aspects of a problem that may have been neglected. Despite the critical function of questions to student learning, I have observed that audience participation in traditional rounds is generally limited to a few questions. In many cases, not everyone participates. Some students are afraid to ask questions. Students thus need to be encouraged to ask questions and have more opportunities to practice the art of asking questions in a supervised setting.

In addition to learning to ask questions, learning to listen to questions is also a fundamental entry-level skill for lawyers. In oral argument, for example, learning to listen to the judge’s question and assessing the judge’s thinking are critical skills for an advocate. Potential Strategies for Achieving the Goal: Provide modelling. Provide timely feedback on the students’ questions so that they can learn why certain questions are good at certain times.

One of the deficiencies that immediately became evident when we first instituted this structured role play rounds was that students had very little experience asking questions, and that their lack of experience impeded the flow of the presentation. Students literally got stuck.

The first time the students tried the question-and-answer session, we professors did not guide the questions. The result was that the presentation came out fairly jumbled. The presentations had little chronological or logical coherence because the questions, which were student driven, were not organised, and students failed to ask follow up questions. After several failed tries, we decided that instructor guidance was critical to ensure that the questions followed some order – e.g, chronological or grouped by subject matter. Instructors must also ‘slow down’ the students to ensure that they stay on a given topic for a sufficient time to obtain all of the relevant facts, and to guide them to do presentations in a clear, organised manner.

I learned the importance of guidance also when I saw a video of Professor Deborah Epstein teaching client interviewing skills to students in the Domestic Violence Clinic at Georgetown University’s Law School. Professor Epstein designed a simulation in which she plays the client whom her students in her Domestic Violence Clinic interview. The video shows two successive interviews. In the first interview, two of the students in the class team up to interview the professor-client. The team elicits some basic facts about a woman whose husband wakes her up in the morning and beats her. The client states that her husband woke her up and ‘messed with her’. After the first interview, the details of the abuse are sketchy. In the second interview, Professor Epstein again plays the client, but she also steps out of role to guide her students in asking follow up questions to elicit specific facts in chronological order. In response to specific follow up questions about what the client meant when she used certain words such as ‘messed with her’, and taking the client through what happened that morning step by step, the client reveals that, when she said that her husband ‘messed with her’ when he woke her up, she meant that he threw water on her as she lay in bed, pulled her by the hair to the floor from the bed, and kicked her with a heavy boot.

When Professor Epstein reveals those facts, the students are shocked, as I was in watching the video, and they realise that they missed those facts in the first interview. They are then forced to reflect on the difference between the two interviews – why the second interview that was conducted in detail in chronological order resulted in critical information they missed the first time. Although the purpose of the demonstration was to illustrate how a class can be designed backwards with goals in mind, I also took away from it that it is important for instructors to guide and model the questions that students should ask when they are novice interviewer-interrogators.

The instructor can also help guide the presentation by asking logical follow up questions if not asked by the student. The sequence of questions should be designed to allow students to build upon previous questions and responses, provide reasons, make connections between ideas and causes and effect, and probe alternative universes and perspectives.

While many benefits have compelled our clinic to use the opponents rounds, professors considering using this or other structured rounds should consider some of the shortcomings of the method. Some of the shortcomings include the unsuitability of the method to presentations involving predominantly legal issues; the time-consuming nature of the presentations; and the challenges that the question-and-answer format pose to the professors facilitating the role play.

In law clinics around the country, case rounds are a common feature of the seminar courses accompanying the clinic curriculum. The role play aspect, where our students assume the role of their opponents, has improved their ability not only to anticipate the other side’s legal arguments, but also to research and discover facts and story lines that they might have otherwise overlooked. At the same time that students are learning these skills, they have had the opportunity to learn to think like a lawyer and to gain insights about professional reasoning, judgement, and values. Combining the elements of traditional case rounds such as reflection with opportunities to practice essential lawyering skills of storytelling, counter-analysis, and interrogatory basics has had many benefits.