Circuses in the Law School Classroom
The Law Teacher, Volume 5, number 2 (Spring 1998), p. 3,5.
About the Author
Mark S. Kende teaches at The Thomas M. Cooley Law School, 217 South Capitol Avenue, P.O. Box 13038, Lansing, MI 48901; (517) 371-5140 (ext. 542); fax (517) 334-5748; kendem [at] mlc.lib.mi.us.
[Editor's Note: Since this article was published, Mark Kende has moved to the University of Montana School of Law, Missoula, MT 59812. He can be reached at kendem [at] selway.umt.edu]
When I lived and practiced law in Chicago several years ago, a food critic appeared weekly on a local television station's evening news. He did colorful five-minute reports appraising various restaurants. He rated the restaurants in two categories. The first was food quality. In the second category, which he referred to as "circuses," the critic assessed the ambiance, character, and charm of the restaurant. He favored restaurants that featured exciting or interesting circuses.
Students in Civil Procedure classes often find the federal rules dry and abstract, and this hinders their understanding of the subject. I therefore have added circuses to my Civil Procedure classes as a way of inspiring students to become more excited about studying the rules and to better appreciate their importance. I show a movie clip, hold a debate, play "Class Action Jeopardy," and conduct a simulation that involves drafting, exam-writing practice, and oral argument. Though I still use a version of the Socratic case method for most of the material, I have found that these circuses provide a welcome respite and are not that time consuming.
I often start my first class by showing a movie clip from "The Fugitive," starring Harrison Ford. Ford plays Dr. Richard Kimball, a man wrongfully convicted of murdering his wife. I show the most action-packed scene of the film, in which several prisoners stage a violent uprising on a corrections bus. The driver is shot during the turmoil and loses control of the bus, causing it to run off the highway and end up on a railroad track where a train then strikes it head on. The scene is spectacular.
One purpose of showing the clip is simply to have the students associate Civil Procedure class with an adrenaline rush. After showing the clip, I tell the students to pretend that an engineer on the train was severely injured in the collision and that he has retained them to seek legal recourse. From that perspective, I ask them questions: How can you find out what series of events led to the train crash? Whom might you name as defendants in a civil action? What remedies would you seek? What defenses might be raised by any named defendants? What information would you seek from any defendants, and what information might they want from your client?
The students are surprisingly adept at answering these questions. For example, they usually know that any suit against the state or the corrections guards on the bus may be met by immunity defenses, that they should seek information about the state's policies for ensuring the safe transport of prisoners, and that a subpoena can be used to obtain information. As they answer my questions, I tell them that specific federal rules govern the procedures to be followed. This exercise causes them to become immediately interested in the rules and builds confidence in their ability to figure out what's important.
During the second week of classes, we discuss the cases governing what remedies the plaintiff can seek in a complaint. I then hold a punitive damages debate where two students represent the U.S. Chamber of Commerce and two students represent the American Trial Lawyer's Association. The student teams sit at tables in front of the class with the Chamber representatives arguing that large punitive damage awards are usually legally unjustifiable and bad public policy, while the ATLA representatives argue the opposite. Each side gets 15 to 20 minutes. The class soon starts discussing and responding to the debaters' arguments as well.
Because high punitive damage awards are so controversial and newsworthy, this debate reaffirms the interesting and important nature of Civil Procedure for the students. In addition, the students talk intelligently to each other in the classroom, rather than simply respond to my Socratic questioning.
Two weeks later, I complete the pleading cases in the textbook and start the simulation. I give my students a week to draft a complaint on behalf of a woman in a retaliatory discharge case. I provide them with documents supporting her claim, including the details of a client interview, a description of witness interviews and document reviews (including an actual termination document), and a memo describing wrongful discharge law. I add to the realism of this drafting exercise by making some of the witness statements inconsistent.
After the complaints are turned in, I make written comments on each and, in class, briefly go over common mistakes. I also give students a model complaint that I have drafted. Students tell me that this exercise has helped them immensely in understanding the pleading rules and that it has made them more confident when they started law-firm clerkships. Little class time is used to do all this.
A week later, the simulation continues when I provide students with an answer to the model complaint drafted by "opposing counsel" (me) representing the defendant corporation. I then give them a memo specifying that the defendant has objected, on relevance and privilege grounds, to plaintiff's request for certain kinds of discovery. The memo instructs them to write a legal brief in support of a motion to compel. I tell them that they can treat the brief like an exam answer and even give them a time limit that they can follow.
After they turn in the briefs, I pick a good one and a bad one, delete student names to preserve anonymity, and copy the briefs onto transparencies, which I show to the class on an overhead projector. I go over them line by line, showing the good qualities and the problem areas. This technique, which was developed by several of my colleagues at Cooley, provides students with concrete and specific examples of the differences between good and bad exam answers in terms of legal analysis.
The next week, I tell the students that the judge in their case granted their motion to compel and that defendant produced the information. However, I tell them also that two new motions have been filed. After the close of discovery, defendant filed a summary judgment motion and plaintiff filed a motion to amend the complaint (based on new information supposedly obtained in discovery). I also give students a memo describing the motions and detailing the information obtained during discovery.
I then ask for four volunteers to do an oral argument in front of a judge, who will be played by another professor. Two students agree to represent the plaintiff, two the defendant. Later in the term, students conduct the oral argument before the judge, who questions them rigorously and then issues an oral ruling. The judge then comments about the advocates' strategies and answers questions from the class as well. This exercise enables the students to see how their actions as an attorney in the earlier part of the simulated case (the pleading and discovery parts) have a direct impact on their success in the later parts of the case (dispositive motions). They start to see the forest of Civil Procedure, not merely the trees of each part of the course. In addition, they get to witness an exciting aspect of litigation practice.
"Class Action Jeopardy"
This circus involves teaching class actions and Rule 23 by putting a "Jeopardy" board on the blackboard listing five categories, such as "famous cases," "public policy concerns," and "potpourri." I learned of this game at an AALS conference. Each category contains answers of various values, and students are expected to figure out the correct questions just as contestants do in the television game show. I divide the class into three teams and promise to reward the winning team by giving its members some respite from Socratic questioning during the following class. Not only do students have fun competing, they learn about class actions while so doing.
Because law school generally, and Civil Procedure more specifically, can be dry, I believe that the use of circuses such as these can be of great benefit in the classroom. The increased excitement and interest that students experience, in my view, cause them to study harder, learn the material better, and understand its real importance. In addition, I have found that it makes class more entertaining for me, and I suspect that helps make me a better teacher.