“So what is it they train those students to do in that school?” asks her partner.

“Well, given that all of the books in every course consist of many, many court decisions from mostly appellate courts, it would appear that they are training them to be appellate judges. Or perhaps appellate lawyers, but more likely appellate judges.”

A reasonable conclusion—and one that has long troubled me, for it is not much different from the one that our first-year students draw as well: Perhaps being a lawyer isn’t just about the appellate process, but it sure seems to be about litigation above all else.

Develop A Problem-Based Curriculum Stressing Alternatives To Litigation

A couple of years ago, I helped convince our faculty at Touro Law Center to transform our first year Civil Procedure course into Civil Dispute Resolution and Procedure (CDR&P). This new course would teach the material using a problem-based method, and would contain a substantial component on alternatives to litigation, critically examining litigation as only one of numerous approaches to resolving disputes. We wanted to make clear to our students from day one that being a lawyer was about being a creative problem-solver, and that litigation was only one tool in the competent attorney’s kit.

Each CDR&P teacher would use A Civil Action, Jonathan Harr’s compelling story of the leukemia cluster in Woburn, Massachusetts and the litigation that ensued against two large corporations charged with having poisoned Woburn’s water supply (Anderson v. Cryovac). In addition, each of us would assign A Documentary Companion to a Civil Action, and any other materials of our choice.

My colleagues all decided to use a casebook as well; I did not. Our students are getting plenty of practice with case analysis in their other classes. Instead, I assign Richard Freer’s excellent “hornbook,” Introduction to Civil Procedure and An Illustrated Guide to Civil Procedure, by Michael Allen and Michael Finch. Allen & Finch follow a hypothetical Age Discrimination in Employment Act case through the entire litigation process. I also assign the Federal Rules of Civil Procedure and key statutory and constitutional provisions. This way, students learn the doctrine through reading the rules and Freer, and then spend the bulk of class time applying that doctrine, first to the ADEA case, and then to the real case of Anderson v. Cryovac. Because none of these texts stresses alternatives to litigation, I supplement them with multiple readings that both describe and critique the alternatives.1

The first few weeks of the term are devoted to an overview of the litigation process, as well as negotiation, mediation and arbitration, as means to dispute resolution. This way, students have a working lexicon of litigation terminology and procedures so that they understand them as they arise in the cases they are reading in their other classes. They also learn about negotiation, mediation and arbitration early on, before their notions of what lawyers do are skewed by their heavily litigation-oriented first year curriculum.

The mega-message, I hope, is that being a lawyer is all about serving the client as a problem-solver. Litigation is one way to deal with a problem, but more often than not there are other, less expensive, less contentious, less time-consuming, more healing approaches for addressing the client’s concerns.2

After we finish this unit, I give the first of the semester’s two writing assignments:

You are representing one of the parties to Anderson v. Cryovac. It is the day before trial begins (therefore you only know what has been learned so far in the discovery process, and do not know how the case will turn out).

You receive a phone call from an attorney for one of the other parties who tells you that the other parties to the lawsuit are interested in pursuing mediation to attempt to resolve the dispute.

Is it in your client’s interests to go into mediation? Why or why not?

Empower Autonomous Learners

On day two of classes we do a brainstorming exercise. I ask the students to make suggestions for three categories of commitments that we will all agree to:

“What are your expectations of me?”

“What are your expectations of each other?”

“What are you prepared to give?”

After we have generated a list of these, I add a few suggestions of my own, and post these on the discussion forum of our class’ TWEN page3 for a weeklong notice-and-comment period.

I can generally count on the class to generate promises to be prepared, to ask questions when one doesn’t understand something, and to be supportive of one’s classmates. Then I add two of my own:

• I understand that in order to become a competent lawyer, I must take responsibility for my own learning. This consists of actively listening to class discussion, even when I am not participating, and reviewing my notes after each class to ensure that I understand the material covered. If I have unanswered questions, I will review the assigned readings, ask my classmates, and/or post questions and comments on TWEN. If despite these efforts I have not resolved my question or confusion, I will speak with the professor.
• I further understand that I will not learn how to be a lawyer by being told “the right answer” to my questions. Becoming a lawyer is not about memorizing a lot of facts. The law is too vast for any individual to “know” it all. In order to be a competent lawyer, I must learn how to teach myself what I do not know.

Post from: The Complete Lawyer

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