The Appellate Classroom

June 12th, 2015 / By

Critics of legal education often note the primacy of appellate law in law school classrooms. Our doctrinal courses, after all, rest primarily on appellate opinions. But the focus on appellate advocacy is even more pervasive than this: Our “Socratic” questioning follows the cadence of an appellate argument.

The professor stands at the front of the room, often on an elevated platform. She poses a question, which a single student addresses. Some questions involve the facts of the underlying case; others address application of the legal principle to other alternative fact patterns. After the student answers, the professor poses another question.

If you doubt the similarity to an appellate argument, try this experiment: Attend an appellate argument in a local courthouse, then witness a traditional law school class later the same day. I once did this, entirely by accident, and I was astounded by the similarities.

Preparation for Lawyering

Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns.

Some of my colleagues argue that the latter task prepares students for other types of practice. We may, for example, ask a student: “How would you counsel your client to respond to this decision?” Or, “what if you advised a client to do X? Would that fall within the court’s holding here?”

These questions, however, are like the ones that appellate judges ask as they probe the doctrinal reach of a possible holding. The substance is the same as questions asking “if I accept your argument, how would that affect individuals who do X?” Or, “how will clients change their practices if we adopt your interpretation of the statute?”

These questions about “advising clients” do not give students practice in client counseling. If a lawyer were representing a real client, the answer to the above classroom questions would be something like: “It depends how much the client has to spend, both on legal representation and on modifications to her business. It also depends on how much the client cares about Y rather than Z. I’d also need to ask the client about potential alternatives.”

Experiential Education

It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose.

Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice.

Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client outside of that setting? That question lies at the root of constructive pedagogic change.

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Analyzing Cases and Statutes

February 16th, 2013 / By

Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.

Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:

1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.

2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.

3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.

4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.

5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.

Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.

Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.

In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.

The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.

6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.

In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.

In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.

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