Procedure Students "Discover" Exams
by
Greg Sergienko

One difficulty in using small-group exercises is providing the right incentive for participation. Using a grade to provide an incentive may make students too competitive and may reward fast learners at the expense of students who ultimately learn the material just as well. On the other hand, if an exercise is not graded, some students will slack off, and those who work hard will feel burdened and may fear their grades will suffer by participating in an exercise when they could be studying graded material. Ideally, the exercise will provide its own incentive. This is especially important when the exercise develops skills that final exams do not test, so that the desire to do well on the final exam does not provide a reason for active participation.

One area where I like using small-group exercises is my Civil Procedure course is in teaching discovery. The students need experience in thinking about how to use the discovery rules as part of a discovery plan, and reviewing cases in the book doesn't provide this. To encourage students to participate actively in a discovery exercise, I allow the students to use the discovery rules to discover information relevant to the final exam. The desire to do well on the exam creates its own incentive for participation. Because the students share all results, they think cooperatively, not competitively. Finally, they begin thinking about discovery as a related series of rules that they can use.

I try to have about fifteen groups and divide the class into groups of from two to four members, depending on class size. Each group must act unanimously and can request the production of documents, ask an interrogatory, or designate someone to ask a deposition question. Each "discrete subpart" of a discovery request counts as a separate request. There is no automatic disclosure under rule 26(a)(1) and no duty to supplement.

Discovery is in waves. I allow an initial deposition, followed by submissions of interrogatories and requests for production, followed by my reply to the interrogatories and requests for production, followed by a final deposition. I prohibit physical and mental examinations, on the grounds that a physical exam is irrelevant and that the instructor is conclusively presumed sane.

I encourage different groups to coordinate with others to eliminate duplicative questions. I tell the students that ideally they will collaborate on an overall, class-wide plan for discovery and that they may want to select one member from each group to participate in an overall allocation of responsibility and then meet separately as groups for drafting. Before the exercise, I give the students a handout along the following lines:

Most cases get resolved before trial. Thus, pre-trial discovery has become one of the most important skills for litigators. However, knowing the individual rules of discovery doesn't make someone good at discovery. Real mastery of discovery requires at least two additional skills.

First, one needs the ability to think strategically about how to use combinations of the rules to have an overall plan for discovery. Thinking strategically requires you to consider the advantages of different types of discovery. Some types of discovery allow you more flexibility and surprise; other types of discovery make it harder for an opponent to keep information from you just because an individual doesn't remember things. I hope that the exercise will encourage you to develop this sort of thinking, not only in discovery, but elsewhere.

A second additional requirement for being good at discovery is to use indirection to get what you want. Here's an example from our police-stop hypothetical [in which the students come up with class definitions for victims of alleged police brutality]: In pursuing the case, you want to discover instances of police brutality following a traffic stop. If you ask the police department, "Identify all instances of police brutality following a traffic stop," they will cheerfully reply, "There weren't any." (If there were cases where a jury awarded damages for police brutality, they'll tell you --but no gain to you, because you probably knew about them already.) That's probably a defensible position on their part, so you'll have used up one of your interrogatories to no effect.

Many lawyers use interrogatories with this sort of loaded language in an attempt to force the opposing party to admit wrongdoing about the uoltimate issue in the case. However, the loaded words narrow the question, leaving a loophole for the other party. Proceeding by indirection, you could ask for all instances in which an initial traffic stop led to an arrest of someone on charges of resisting arrest, which were later dropped. The fit between the cases you've identified with this question and your image of police brutality cases won't be exact, but it's a darn sight better than anything you're going to get out of the police department if you ask directly about police brutality. This question can be tinkered with at the margins: you might eliminate the requirement that charges be dropped, or say that you wanted to know about charges of resisting arrest that ended in acquittal, or ask about traffic stops where the police subsequently called for an ambulance. Answers to these questions will identify situations where no complaint was made, but where you might want to investigate further. Asking questions like these also tends to reduce objections on the grounds of irrelevance.

Here, you don't know if all of the final exam has been written yet. As a back-up to questions about the exam itself, you need to ask about information that indirectly informs you about the likely nature of the exam. I won't tell you what that might be -- that's your job.

A subsidiary goal of the project is to give you experience working in groups. Here, you've all got to cooperate in doing this discovery, both within your small group and with the other small groups. At the same time, you may have slightly different ideas about the questions you want to ask. Practicing working with comparative strangers is one reason I assigned people to groups. (The others are avoiding the prom-date-anxiety phenomenon, and, I'll admit, administrative convenience.)

After the questions are done, I have a debriefing, in which we talk about things the students could have done better. In addition to helping them learn, it helps me evaluate their performance.

The first time, students didn't respond well. Some groups did not complete their questions, and many questions were not well drafted. It may have been their expectations about the appropriate course requirements and the addition of the exercise to the syllabus after the course had started.

Subsequent times have worked very well. I was satisfied from the quality and coordination of the questions that they had learned a lot about discovery.

The other time, there seemed to be less planning and the questions were less coordinated. For example, students missed discovering a midterm exam because their request to produce covered only final exams. Discussing where the students failed to discover information that they might have liked gave real force to the importance of asking the right questions. If anything, however, the final exams for this class were the strongest, and many showed real signs of strategic thinking in how to handle a case that I would not have expected of first- or second-year associates, much less first-year students. I think the discovery exercise helped develop these skills.

The exercise also has some intangible benefits. I notice an increased esprit de corps in the class. This doesn't seem to be accompanied by any resentment of me at hiding the ball about the final exam, perhaps because students get information that professors often don't provide. Even when professors provide this information, the students' participation in asking the questions gives them an ownership in the process that a mere handout about exam philosophy could not provide.