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Looking Beyond Headnotes: Distinguishing Cases (Exercise)

Looking Beyond Headnotes: Distinguishing Cases (Exercise)

By Vicky Daniels

By Matthew Boles,

Background

According to the ABA Student Lawyer magazine, unpaid internships, primarily in the summer between the first and second year, consists of research and writing.[1] More than 80 percent of the top 200 law schools indicate that legal research is a mandatory course for first-year students.[2] A 2013 Insights Report states associates spend nearly one-third of their time on legal research.[3] As students and lawyers research issues, headnotes can be a useful tool to read summaries of cases and find other similar cases.[4]

This exercise helps students look past the headnotes when reading cases and making arguments that courts should follow precedent or whether the case is distinguishable.  I practice immigration law and use a four-page decision from the Board of Immigration Appeals (BIA) as an example case. Students will read facts from a hypothetical scenario I created, read the decision and headnotes, and determine whether the headnote about a conviction for Driving Under the Influence (DUI) is sufficient.

Directions:

  1. Have students read the “Overview of Client’s Case” section
  2. Next, students will read the headnotes of the decision, Matter of Siniauskas,[5] take notes, and make a conclusion as to whether the case applies to our hypothetical situation, and if so, how. [Click here to access Matter of Siniauska (pdf)]
  3. Read the case and determine whether the headnote about a DUI addressed the issue. I highlighted portions of the decision. I provide some information below as to why we do not cite headnotes in decisions.

Overview of Client’s Case

The attorney is an immigration lawyer and works at a small firm. She handles many types of immigration matters, from submitting petitions to United States Citizenship and Immigration Services (USCIS) on a wide variety of matters, to representing immigrants who have court at the Executive Office for Immigration Review (“immigration court”). Up to this point, her work has been for immigrants who are not detained. As the firm grows, however, she begins taking cases where clients are detained by Immigration and Customs Enforcement (ICE). The firm is contacted by a family whose family member is in an ICE facility about two hours from your office. The facts are below, but ICE files a Notice to Appear (form I-862) with the immigration court. The client’s family retains the firm to represent him in immigration court. The attorney files the Notice of Entry of Appearance as Attorney or Representative Before Immigration Court (form E-28) and completes the proof of service. She is prepared for his Master Calendar hearings, preliminary type of hearings, but understandably she wants to request a custody redetermination hearing (bond hearing) in hopes that her client will be released from ICE custody and have his case transferred to a non-detained docket.

Here are the facts of the client’s case. He is an immigrant whose sole entry to the United States was in 2005. He entered without inspection and has never applied for nor received any type of visa or lawful immigration status. In 2007, he meets a woman who he marries in 2010. His wife is a United States citizen. In 2012, she gives birth to their first child, a healthy baby boy. Three years later, they have their second child. This time they have a girl, and she has some health issues. He has a full-time job, working six days a week to support his family. He is the main source of financial support for his family. In addition to working, he and his family attend church every Sunday, and he is well-respected in the community.

One day after work, he and a couple of colleagues had a couple of drinks. He was driving home alone in his car when the police arrested him for a DUI. The DUI did not result in injuries or property damage. He pleaded guilty, received credit for time served, and paid the fine. A couple of days before he was scheduled for release, ICE placed an immigration detainer (immigration hold), and he was transferred to ICE custody. The DUI is his only criminal history (remember that immigration is civil, and not criminal. ICE is alleging he violated the Immigration and Nationality Act).

Since he has been detained, his family has struggled. His children, ages 9 and 6, are having trouble focusing at school. His wife had to find a second job and is constantly worried what will happen to her husband. The attorney has already collected letters of support from friends, family members, the church, and other relevant documents she will include as exhibits in the motion. She also obtains the criminal disposition for the DUI and arrest report. She also obtained a letter from Alcoholics Anonymous, stating his client would be able to attend meetings if he is released from the ICE facility.  In her notarized letter, the client’s wife states she will drive him so that he will not have to drive, and she provides her driver’s license, proof she owns a car and car insurance.

Since the attorney is new to detained work, she begins to research relevant BIA case law. She feels confident that her client would not be considered a flight risk given his family and community ties, but she is worried that the client may be considered a danger to the community based on the DUI conviction. As she researches cases, she finds a 2018 BIA case that addresses DUI in the custody redetermination context. That case is Matter of Siniauskas.[6]

Headnotes from Siniauskas

Below are the two headnotes from the case:

(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.

Looking at these headnotes, what thoughts comes to mind as it applies to our hypothetical scenario and the client? Just by reading the headnotes, it does not seem promising for the client. The first headnote essentially makes two points: the IJ should consider more than just arrests and convictions, and family and community ties that go to flight risk will not generally address whether a respondent is a danger to the community. The second headnote, however, specifically addresses DUIs and provides the “significant adverse consideration” language.

Next, read the case. I have highlighted parts of the decision. The BIA decision is four pages long, and there was no dissent. Discuss whether students believe the headnotes sufficiently summarize the decision.

Discussion/Information about Headnotes

The BIA precedent chart compiles headnotes.[7] The chart specifically states, “This document is provided for informational purposes only as a convenience to the public.  It is not intended as a comprehensive source for preparing an appeal, or for citation in legal briefs, and does not represent an official publication of EOIR.”[8] Headnotes should not be cited.[9] In Supreme Court cases where there is a syllabus (headnote), there is a disclaimer to make clear the headnote is not part of the opinion.[10] The note specifically cites a 1906 Supreme Court case.[11] That case, United States v. Detroit Timber & Lumber Co.,[12] is about a property dispute, but counsel relied on the headnotes of a previous case. The Supreme Court noted, “In the first place, the headnote is not the work of the court, nor does it state its decision…It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports. . .. .”[13]

Returning to the client’s case, reading the case is important to not only understand the BIA’s reasoning but also the specific facts. As the Siniauskas court explained, “[i]n bond proceedings, it is proper for the Immigration Judge to consider not only the nature of a criminal offense but also the specific circumstances surrounding the alien’s conduct.”[14] This is where the facts come into play to distinguish the case from the one in Siniauskas. In that case, the respondent had three DUI convictions, a pending DUI charge, and three out of the four involved accidents.[15] In at least one subsequent unpublished decision, the BIA agreed with an I.J. who found a respondent was not a danger to the community when the respondent’s DUI conviction was his only offense in nine years of living in the United States and his DUI did not result in injury or property damage.[16] Even though BIA unpublished decisions are not binding,[17] they are helpful when conducting research and advocating for clients and their release from ICE custody. In our scenario, our client is closer to the respondent in the unpublished decision. In drafting the bond motion for her client, the attorney should cite both cases and explain why the I.J. should find our client is not a danger to the community. As a practical matter, I often include unpublished BIA cases as exhibits.

Headnotes, no doubt, are a helpful tool that students and practitioners can use when researching and drafting. But encourage students to go beyond the headnotes and delve into the details of the case, rather than exclusively looking at headnotes. This exercise will make students better prepared and ready for internships and eventually when they practice.

[1] Bill Chamberlain, What to Know about Your First Summer Internship, ABA Student Lawyer Magazine, December 1, 2016, available at https://abaforlawstudents.com/2016/12/01/what-to-know-about-your-first-summer-internship/ (last visited Oct. 11, 2021).

[2] Caroline L. Osborne, The State of Legal Research Education: A Survey of First-Year Legal Research

Programs, or “Why Johnny and Jane Cannot Research”, 108 Law Libr. J. 403, 408 (2016).

[3] Steven A. Lastres, “Rebooting Legal Research in a Digital Age,” Insights Paper, 2013, available at https://www.lexisnexis.com/documents/pdf/20130806061418_large.pdf (last visited October 11, 2021).

[4] Case Finding and Advanced Searching Strategies, Robert Crown Law Library, Stanford Law School, available at https://guides.law.stanford.edu/cases/headnotes (last visited October 11, 2021).

[5] 27 I&N Dec. 207, 209 (BIA 2018).

[6] 27 I&N Dec. 207 (BIA 2018).

[7] BIA Precedent Chart, available at https://www.justice.gov/eoir/bia-precedent-chart (last accessed October 11, 2021).

[8] Id.

[9] Id.

[10] See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

[11] Id.

[12] 200 U.S. 321, 337.

[13] Id.

[14] 27 I&N Dec. at 208 (citing Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)).

[15] Id.

[16] N-P-N-, AXXX XXX 692 (BIA Oct. 29, 2018).

[17] See Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011).

Using Silent Signals to Assess and Engage the Students

Using Silent Signals to Assess and Engage the Students

By Vicky Daniels

By Emily Grant, Washburn University School of Law and Sandra Simpson, Gonzaga University School of Law

In a large classroom or in a zoom setting, sometimes it’s difficult to encourage two-way communication so that students can share thoughts with the professor.  Use of “silent signals” can facilitate real-time feedback and communication from students so that the professor can accurately assess the classroom climate.

First, what kind of silent signals?  You can ask for simple gestures like a thumbs up or thumbs down.  When I use this method, I have the students hold their signal close to their chests so I can see the signal but most of their colleagues can’t.  This may help the students feel more anonymous.   The same hand gestures work on zoom, or you can use the options under “reactions”—thumbs up, thumbs down, arrows, stop sign.

Next, signals in response to what?  Anything you might need feedback on.  Comprehension of the topic or the sample problem.  Pacing of the conversation.  Voting on how a hypothetical case will come out.  Expressing opinions on whether you agree with the dissent’s position. I use the thumbs up or thumbs down method to measure students’ comprehension of a concept we just covered.  The same method is a quick way to poll the students as well.

As with many teaching techniques, be careful not to overuse signals.  But in limited doses, they can be an effective way to take the temperature of a classroom.

Adapted from Elizabeth F. Barkley & Claire Howell Major, Interaction Lecturing: A Handbook for College Faculty 156-57 (2018).

Become Obsolete Graciously Please and Stop Blaming our Students

Become Obsolete Graciously Please and Stop Blaming our Students

By Sandra Simpson

By Rory D. Bahadur, Washburn University School of Law

Most of us have heard the lament from colleagues that, “Because K-12 and undergraduate has changed so much since we went to school, students enter law school today undereducated and so unaccustomed to rigor, that law schools need to invest an inordinate amount of time just to enable students to be competent at the things that lawyers need to do.”  Corollary comments are:  students can’t write, and their grammar is deficient yada yada yada.

Taken to its logical extreme, this sentiment means the practice of law and civilization is essentially dead because kids no longer learn the things needed to become successful lawyers. There are a few things which have been deemed correct assumptions of our civilization at different times in our history.  Reflect on the reactions of people at the time as they slowly discovered these things were not true:

  1. The sun rotates around the earth;
  2. The earth is flat;
  3. The earth is at the center of the universe;
  4. Women are inferior to men;
  5. Continents are immovable; and
  6. The ether is a necessary transmission medium for light.

We can all agree that these are no longer true.  Yet are the following assumptions we cling to as law professors equally false?

The first assumption is there is value to the minutia of grammar and our students are deficient because their grammar and punctuation skills are not “like ours were.”  A counter narrative, however, says ‘Grammar is classist, it’s ableist, and it’s oppressive. It reeks of privilege, and those who spend their time correcting others’ grammar do too.”[1]  One wonders whether Shakespearean elitists of the 16th century could ever imagine that “thine grammar would become archaic and clumsy.”  Grammar may also be a race-based check on valuation of individuals according to their conformance with an artificial social construct.[2]

The second assumption is that today’s students don’t know how to work.  I will suggest here that what efficient and hard work was 10 years ago is in large part inefficient and archaic today.  Today’s students have instant access to information that we had to “work hard” to get.  As a result, what we envision as “productive hard work,” needed to get information is now inefficient and useless because they can ask Siri and get the same information.  Their time is better spent creatively using information rather than memorizing and obtaining it.

If you don’t believe me, try to learn a legal concept with which you are unfamiliar.  11 years ago, that concept for me as a new teacher was 11th amendment immunity and the Seminole Tribe case.  I spent hours researching law review articles, reading cases and trying to figure out where a good starting point was for the doctrine.  I mentioned the struggle I was having to my 16-year-old son who said, “Read Wikipedia first.”  I did and in three and a half minutes was able to have a clearer starting point for the doctrine than after three or four days of “hard work.”

Much of the research on Millennials and Generation Z suggests that professors who have information and pass on knowledge are viewed as close to useless by today’s students.  In order to engage these students, we need to provide context and demonstrate how information and knowledge is useful in current and relevant ways.  That’s not their fault.  Knowing stuff is no longer a big deal but the creative use of the information everyone has access to is what’s important today.

 

[1] https://medium.com/no-prescription-needed/grammar-the-worlds-most-under-recognized-social-construct-a54e096ecc9c

[2] https://medium.com/no-prescription-needed/grammar-the-worlds-most-under-recognized-social-construct-a54e096ecc9c

 

Skills-Focused Exam Prep Exercise

Skills-Focused Exam Prep Exercise

By Sandra Simpson

By Jeremiah A. Ho, University of Massachusetts School of Law

Yes, it is again that time of the semester again. The post-Thanksgiving emotional climb of test anxiety is upon us much like the Christmas music that has begun to trail us at retail stores.  I can see that anxiety in the eyes of my first-year students coloring their expressions when I greet them in the hallway or stare at their faces in the lecture hall.  Once November hits and the days start to get shorter, the inevitable fear of exams loom.

For many of them, the fear of exams is really about not having any confident direction or know-how in terms of preparing and taking law school exams.  That’s natural for new first-years.  What I’ve uncovered over the years is that a simple conversation with students is very helpful to allow students who are new to law school testing to get a handle on how to perform well on first semester finals.  I call this my yearly exam pep-talk.

What has been even more helpful prior to having my pep-talk is to give my first-years an exam-writing exercise that doesn’t focus on whether they are substantively correct on the material, but focuses on the skills of exam writing itself.  Then afterwards I have the talk about exam taking.  I tried this exercise recently with high satisfaction and success.  My theory is that after having an exercise that only focused on exam-taking allowed us to have an even fuller discussion of exam writing and solidified much of the truth about that process in order to dispel the fear of finals—the fear of some sort of unknown, in other words.

Here’s what I did:

(1) I gave a one-issue hypothetical fact pattern in class that covered a recent doctrine we recently taught in class.  Through class dialogue and discussion, I tested the students on their substantive application of that fact pattern.  I made sure to go the rule and the most correct response, working out the substantive answer together in class so that we’re all on the same page.

(2) Then I requested that they each take the same fact pattern home and write a one-issue IRAC response that reflected what we’ve already worked out for this fact pattern.

(3) At the next class, they returned with their written IRAC responses.  I passed a rubric for that response.  However, the rubric only measured their ability to write an organized IRAC essay—measuring for characteristics such as organization, IRAC structure, clarity, and grammar/syntax.  I made students turn to a partner, exchange fact patterns, and grade their partner’s response using this skills rubric.

My intent was that if the substantive issues had been clarified previously, the students were then able to focus on the how-to of writing exams when they wrote the one-issue IRAC at home.  For instance, they were now better able to focus on strategy and making effective choices in organizing an IRAC during the exam session.  Then grading each other’s responses with my skills rubric made it easier for them to understanding my thought process as the grader.

Doing this before my exam pep-talk helped them have better questions to ask me when I took the time to talk to them about exams.  What resulted was more effective focus and questioning regarding the skills part of their answers rather than the substantive aspects.  It led to a much better and more constructive conversation about exam taking that I had ever had.

Notes on Supporting Non-Millennial Law Students

Notes on Supporting Non-Millennial Law Students

By Sandra Simpson

By Jeremiah A. Ho, University of Massachusetts School of Law

Usually about this time in June—during the early-to-middle weeks of the summer break—is when I do an assessment of my teaching from the past academic year.  By now, all of my final exams have been scored for a while and grades have been submitted.  Students are gone off for their summer jobs and internships.  A sense of quiet resides within the faculty hallways and invites contemplation.  For me, it’s a great time look back because the distance from finals grading has dissipated any visceral feelings—positive or negative—that might have otherwise influenced a look-back at my teaching.  I want any assessment to be as honest and objective as possible.

In looking back this particular year, I note the presence of a few more non-traditional, older law students in my first-year courses than usual.  Because of their increased presence, the challenge of trying to support them was thrust upon me from fall to spring.  Of late, I have seen many great pieces in current law teaching literature focused on teaching law students from the millennial generation.  However, when curiosity got the best of me and I searched for current articles on teaching and supporting law students outside of the millennial generation, I found some statistical knowledge, but not very much constructive observations or information.  For those likeminded folks who have also wondered how to better teach and support our older, non-millennial law students, I have a few observations from my own experiences this year.

  1. Non-millennial law students are not a homogeneous group. Just because they are beyond the current mainstream generation of law students in age, does not mean that they resemble each other either.  Many of my non-millennial law students varied in age and background from each other as well.  As a reflection of that variation, they brought to the student body many differences in socio-economic status, career backgrounds and goals, and life experiences.  For me, as the instructor, this variation also meant trying to use different strategies to make them feel included in the dialogue in the classroom—often relying on their practical experiences before law school to invite conversation.  For instance, in Contracts, cases dealing with homebuying or employment relationships often allowed my non-millennial law students who own property or have had working experiences to engage in the material from a more practical way and offer insight.
  1. Non-millennial law students often prepare differently for classes than younger law students. One very observable characteristic between my millennial and non-millennial law students has been in their method of preparation.  Whereas my millennial law students will often find something in their case reading is relevant only because it’s relatable at the time to a concept that we were readily and simultaneously learning in the course, my non-millennial law students will try to broaden what is relevant and significant by asking themselves, “Do I need to know this just in case?”  This difference translates into their preparation for my classes and final examination.  While I have to sustain relevancy for my millennial law students, I have to show my non-millennial law students what material or information might be extraneous.
  1. Some non-millennial law students tend to become important emotional pillars in the student body. Because of their life and career experiences prior to law school, my non-millennial law students often become role models in extra-curricular positions or become sources of emotional support to their millennial counterparts in the first year.  This occurrence often does put added stress to their own studies and time management.  As the professor, I often will remind my non-millennial law students to take a moment and assess what they can or cannot take on—especially for those students who might also have an active family life or work responsibilities outside of law school.
  1. Non-millennial law students learn just as quickly and as readily as millennials. I have no quantitative or qualitative statistics here.  This observation is just anecdotal.  However, I have witnessed the successes of many non-millennial students in my various classes, which gives me confidence in making this statement.  I do concede that success could be attributed to the amount or type of preparation that non-millennial students put forth rather than natural ability.  But I stand by this assertion, nonetheless.  It is an observation that counters biases against any societal perceptions of “handicaps” to learning as an older law student.
  1. Non-millennial law students bring a contextualized experience to the dialogue of the classroom. Often, this observation is touted as a reason to welcome the admission of older law students in law student body.  It adds to the diversity of the student population and can be seen as generating different viewpoints in class dialogue.  That is true to some extent.  However, I have noticed that sometimes the prior work, life, or industry experiences outside of law school can also impair ways to see the other side of a situation—especially if they have had some extensive work experience in something related to my course.  So I often will spend time in the classroom welcoming their viewpoints but also de-contextualizing them by countering with hypotheticals that might get them to see other possible sides of an issue.

These points above are generalized observations and not all non-millennial law students exhibit these traits.  However, I hope my descriptive observations here give some guidance and food for thought to other law teachers out there who are interested in making sure non-millennial law students succeed just as well as their millennial peers.

 

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment

By Sandra Simpson

Reviewed by Jeremiah A. Ho, University of Massachusetts School of Law

Review: Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment and Summary Judgment Success, 22 J. Leg. Writing Inst. ___ (2018).

SSRN Article Link

By Shaun B. Spencer and Adam Feldman

Because I teach first-year law students, the spring semester always brings back recollections of the first-year legal writing experience, culminating with the classic appellate brief assignment.  When I came across my colleague Professor Shaun Spencer’s latest article, co-written with Adam Feldman, a J.D./Ph.D post-doctoral fellow at Columbia Law, I thought it was apt to share—not just because the article’s main handle pertains to the topic of legal writing, but also because of what it implies for law teaching generally.  The article is titled, Words Count: The Empirical Relationship Between Brief Writing and Summary Judgment Success, at it is forthcoming this year from the Journal of the Legal Writing Institute.

At the start of Spencer and Feldman’s article, the piece seems exclusively relevant for practitioners because it presents us with a statistical relationship between the readability of summary judgment briefs to the rate of favorable case outcomes.  Thus, in terms of readability, proficient legal writing is a valuable commodity in law practice according to their results.  However, the academic implication is also clear because legal writing is also what law schools teach.  The idea of effective legal writing lies at the heart of various legal writing textbooks and numerous pieces of scholarship on the subject.  Since Langdell, legal writing classes have been welded into the law school curriculum.  And ABA accreditation standards reinforce that tradition of teaching legal writing by mandating that students take writing courses throughout their law school careers.  In this way, Spencer and Feldman’s article is one to observe.  Their empirical study underscores the value of instruction and competency for the art and skill of legal writing.

Judges might hesitate to divulge that the quality of a practitioner’s writing can influence judicial decision-making of a case—since this revelation would clash with the idea that cases are resolved based on adjudication of law and facts, rather than on the skills and proficiency of practitioners.  However, several existing scholarly studies that have already examined appellate brief writing and correlated subjectivity and readability to favorable outcomes.  In their study, Spencer and Feldman now bring the empirical lens to state and federal trial court briefs in order to determine whether a positive association exists between brief readability and case outcomes.  Here, they frame two hypotheses.  First, “[i]ncreased brief readability will lead to a greater likelihood that a party will prevail on a motion for summary judgment.”  Secondly, “[w]hen the moving party’s brief is more readable than the non-moving party’s brief, the moving party will be more likely to prevail on a motion for summary judgment.”  With these hypotheses raised, they embark to test their hunches.

Spencer and Feldman use cognitive theory to explain their hypotheses.  Because the brain processes familiar and unfamiliar information differently, the fluency of information presented affects whether a person would process new information associatively or analytically.  The more fluent the information presented is, the more one tends to process associatively, and vice versa—the less fluent, the more one processes analytically.  In writing, fluency can be affected by formatting and “the look” of the document—as predicated for example by font, color, and spacing—as well as readability-related characteristics such as length and complexity of sentences, grammar, and vocabulary.

From here, the authors outline the research method they designed that includes their reasoning for examining summary judgment briefs, a protocol for selecting briefs for their sample, and the definition and coding of variables.  In total, they looked at 654 total briefs in 327 cases from both federal and state courts.  What Spencer and Feldman found was that “[w]hen the moving party’s brief was more readable, the moving party was typically more likely to prevail[.]” Also, “[m]oving from cases where the moving party’s brief is significantly less readable than the non-moving party’s brief to the opposite situations, the likelihood that the moving party prevails on the motion for summary judgment more than doubles from 42% to 85%.”  Both findings appear consistent with their initial hypotheses.  The authors explain alternative theories for these results but ultimately dismiss those theories for the correlation they reached.

For lawyers and advocates, this study presents an important focus on effective and presentable writing in litigation.  However, although Spencer and Feldman’s study does not prove a causal relationship between readability of briefs and favorable case outcomes, the authors do call out that the strong correlation raised here does bolster “the ever-increasing emphasis on legal writing instruction in law school curricula, the ABA standards on law school accreditation, and continuing legal education programs.”  Thus, this study lends credibility for elevating the profile and status of legal writing colleagues in law schools across the country.

In reading Spencer and Feldman’s article, I was reminded of the old schoolhouse phrase, “neatness counts”—but here perhaps it’s “readability counts” that is more appropriate.  With readability highly influenced by the proficiency of legal writing, what this study eventually provokes in me as a doctrinal law faculty member can be crystallized into two thoughts.  First, I have a question: does readability correlate to final examination grading or am I as the grader of my final exams doing something else in the grading process (such as assessment) that is conceptually and functionally different from the adjudication process?  Secondly, if readability does correlate to exams (even if I am assessing competency rather than adjudicating cases), then knowing how to affect fluency and readability would be an intrinsic part of the art of lawyering, factoring into the choices and strategies a legal thinker makes in advocacy.  I would see that, other than teaching doctrine, imparting such skills would be part of my job as well.  Teaching it effectively would be another way to help my students engage with the law and help empower them.  Ultimately for me, it is this correlation, drawn from Spencer and Feldman’s study, that resonates most with me.  In this way, beyond “readability counts” for practitioners, their study is also very significant for the teaching of effective lawyering.

 

Using Instant Replay to Teach Standards of Review

Using Instant Replay to Teach Standards of Review

By Sandra Simpson

By David Sorkin Associate Professor of Law
The John Marshall Law School

Using Instant Replay to Teach Standards of Review
David E. Sorkin, The John Marshall Law School
Bepress – David Sorkin 

A colleague recently posted a question on the Legal Writing Institute’s mailing list, seeking ideas for “fun” ways to teach students about standards of appellate review. Several other colleagues responded with suggestions, some of them noting the similarity between legal standards of review and the standard for overturning a official’s call in a football game or other sporting event. The point has also been the subject of considerable legal scholarship.[1]

I use an exercise in my first-year legal writing classes based upon this similarity. After introducing the concept of standards of appellate review, I show my students a brief clip of a football play involving a close call, and ask students to articulate the relevant rule —for example, a forward pass is illegal after the ball has crossed the line of scrimmage. I tell students to apply that rule to the facts they have observed and vote on the appropriate call.

Next, I show the actual call that was made by the field official. Some students will undoubtedly disagree with that call and suggest that it ought to have been challenged. Sometimes a student will even reference the standard that governs instant replay reviews—“clear and obvious visual evidence” warranting reversal (or as it was termed prior to 2016, “indisputable visual evidence”). We then watch the play in slow motion and discuss whether the call should have been reversed under that standard. This leads into a discussion of why the NFL has selected that standard of review, whether it is the appropriate standard, and how it compares to the standards of review used by appellate courts.

One play that works well for this exercise is the so-called “Instant Replay Game”—Chicago Bears at Green Bay Packers, November 5, 1989:

Packers quarterback Don Majkowski threw an apparent game-winning touchdown pass with less than a minute remaining in the game. The linesman called a penalty on the basis that Majkowski had crossed the line of scrimmage before releasing the ball, making it an illegal forward pass. The Packers challenged the call and the referee reinstated the touchdown after viewing an instant replay, ruling that Majkowski had not crossed the line of scrimmage. (The rule itself was subsequently changed, to define an illegal forward pass based upon the position of the passer’s feet instead of the position of the ball.)

For a more accessible example, consider Philadelphia Eagles at Dallas Cowboys, September 15, 2008:

Eagles wide receiver DeSean Jackson caught a long pass and ran into the end zone, flipping the football behind him to celebrate what appeared to be his first NFL touchdown. The Cowboys challenged the touchdown call, noting that Jackson had already flipped the ball by the time he reached the goal line. The call was reversed, and the Cowboys ultimately won the game by four points. (Jackson’s hasty celebrations date back to his high school days.)

Several controversial calls were made by replacement officials during the NFL referee lockout of 2012, including the “Inaccurate Reception”—Green Bay Packers at Seattle Seahawks, September 24, 2012:

Down by five points with eight seconds remaining, Seahawks quarterback Russell Wilson threw a long pass to receiver Golden Tate in the end zone. Both Tate and Packers safety M.D. Jennings got their hands on the ball. The two replacement officials near the play made contradictory calls and then ruled that the two players had simultaneous possession, resulting in a game-winning touchdown for Seattle. On review, the referee ruled that there was not adequate evidence to overturn the call, so the touchdown stood. (The scope of review was limited by NFL rules; the field officials probably should have called offensive pass interference and voided the touchdown on that basis.) Two days later, the NFL settled with the referees association, ending the lockout.

There are, of course, many other examples that will work. For example, the Dallas Cowboys lost a 2015 playoff game as a result of a reversed call. A collateral attack on that ruling (brought by a prisoner suing the NFL) was dismissed on procedural grounds.

Some may prefer to use examples from other sports. Most use a standard of review similar to that of the NFL.

The exercise gives students an opportunity to practice legal analysis in a familiar (or at least different) context, and is especially helpful in introducing them to what otherwise can be a very dry topic.

I hesitate to use sports analogies in class, knowing that they are likely to put off some students. But I have found that, at least in this instance, doing so tends to engage students and elicit enthusiastic participation from those who do not usually volunteer (especially Packers fans, even in Bears country).

 

[1]See, e.g., Steve P. Calandrillo & Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1 (2017), http://harvardjsel.com/wp-content/uploads/2017/01/Calandrillo.pdf; Kenneth Kilbert, Instant Replay and Interlocutory Appeals, 69 Baylor L. Rev. 267 (2017), https://ssrn.com/abstract=3008827; Russ VerSteeg & Kimberley Maruncic, Instant Replay: A Contemporary Legal Analysis, 4 Miss. Sports L. Rev. 153 (2015), http://mssportslaw.olemiss.edu/files/2015/09/EIC-VerSteeg-Edit-FINAL-Macro-p.-153-273.pdf; Mitchell N. Berman, Replay, 99 Cal. L. Rev. 1683 (2011), https://doi.org/10.15779/Z38DQ4S; Chad M. Oldfather & Matthew M. Fernholz, Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, 43 Ind. L. Rev. 45 (2009), https://mckinneylaw.iu.edu/ilr/pdf/vol43p45.pdf; Aaron R. Baker, Replaying Appellate Standards of Review: The NFL’s “Indisputable Visual Evidence”: A Deferential Standard of Review, 16 Tex. Ent. & Sports L.J. 14 (2007), http://teslaw.org/wp-content/uploads/bsk-pdf-manager/2017/03/Spring_2007_vol.-16-1.pdf; S. Christopher Szczerban, Tackling Instant Replay: A Proposal to Protect the Competitive Judgments of Sports Officials, 6 Va. Sports & Ent. L.J. 277 (2007), http://heinonline.org/HOL/LandingPage?handle=hein.journals/virspelj6&div=15; Bennett Liebman, Reversing the Refs: An Argument for Limited Review in Horse Racing, 6 Tex. Rev. Ent. & Sports L. 23 (2005), http://heinonline.org/HOL/LandingPage?handle=hein.journals/tresl6&div=4; Jack Achiezer Guggenheim, Blowing the Whistle on the NFL’s New Instant Replay Rule: Indisputable Visual Evidence and a Recommended “Appellate” Model, 24 Vt. L. Rev. 567 (2000), http://heinonline.org/HOL/LandingPage?handle=hein.journals/vlr24&div=22.

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

Ferrari Has Really Fast Race Cars: A Mnemonic for Doing a Case Analogy in the “A” Section of IRAC

By Sandra Simpson

By Ben L, Fernandez, Legal Skills Professor
University of Florida Levin College of Law

IRAC is an acronym for Issue, Rule, Application and Conclusion.  I imagine every law school in America teaches its students to use some variation of IRAC as the structure for analyzing a legal issue.  And IRAC works fine if the analysis is simple, like this:

Issue
The issue in this case is whether Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

Rule
A basic tenet of premises liability in tort law is those who own or control property have a duty to maintain it in safe condition.  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application
Supermarket Corp. was the owner of the property where the accident occurred, and was also in control of the store on the premises.

Conclusion
Therefore Supermarket Corp. was responsible for maintaining the premises in reasonably safe condition.

The problem with IRAC is most legal reasoning is not that simple.  Society doesn’t need lawyers to analyze legal problems that can be deduced from a general rule.  The problems lawyers are most often tasked with analyzing involve analogical reasoning.  We analogize or distinguish fact patterns to determine whether and how the rule applies.  So the “A” in IRAC isn’t usually as simple as applying the rule to the facts.  We need to compare the facts of the fact pattern to the facts of a similar case.  And IRAC doesn’t give the students much guidance on how to structure the application portion of the analysis.

When I teach IRAC as a form for analyzing a legal issue, I tell students to start with the issue and the rule, then apply the rule by giving an example of how the rule was applied in a reported case.  To do the application part of IRAC, start with the facts of the case, describe the holding, and explain the reasoning for the court’s decision.   Then state the fact pattern is analogous, compare the facts to highlight the similarities, apply the rule of the case, and come to a conclusion.  The mnemonic I use to help students remember that structure is “Ferrari Has Really Fast Race Cars,” which stands for Facts, Holding, Reasoning, Facts, Rule and Conclusion.

Here is an example of what an analysis would look like using this formula:

Issue
The issue in this case is whether evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Rule
 “Where a foreign substance on a floor or stairway causes the business visitor to fall and sustain injuries, he may prove the negligence of the defendant by proof that . . . the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.”  Oliveri v. Massachusetts Bay Transp. Authority, 363 Mass. 165, 167 (1973).

Application:  Facts (Ferrari)
For example, in Anjou v. Boston Elevated Ry. Co., 208 Mass. 273 (1911) the plaintiff slipped and fell on a banana peel.  According to witness who had examined it, the banana peel “’felt dry, gritty, as if there were dirt upon it,’ as if ‘trampled over a good deal,’ as ‘flattened down, and black in color,’ ‘every bit of it was black, there wasn’t a particle of yellow,’ and as ‘black, flattened out and gritty.’” Id. 

Application:  Holding (Has)
Based on that evidence, the court held that “[t]he inference might have been drawn from the appearance and condition of the banana peel that it had been upon the platform a considerable period of time, in such position that it would have been seen and removed by the employees of the defendant if they had been reasonably careful in performing their duty.” Id.

Application:  Reasoning (Really)
A banana peel is perishable.  It decays over time and turns black.  Therefore, if a banana peel looks black and gritty, it is reasonable to infer it’s been sitting for a while.

Application:  Facts (Fast)
This case is analogous.  The customers in both cases slipped and fell on perishable substances.  Wax beans and strawberries, like bananas, are perishable.  After the passage of time, beans turn brown and strawberries turn black, just like bananas turn black when they decay.

Application:  Rule (Race)
For the same reason it is reasonable to infer a black banana peel has been on the floor for a substantial length of time, it is also reasonable to infer dirty brown beans and black strawberries have been on the floor for a long time.

Application / Conclusion (Cars)
Based on the evidence, the store owner in this case should have known of unsafe condition and either cleaned it up or warned customers of its existence.  By failing to do either, the owner breached the duty of reasonable care.

Conclusion
Evidence of dirty brown wax beans and black strawberries on the floor of a supermarket is enough to show the property owner breached the owner’s duty to keep the premises in reasonably safe condition.

Ferrari Has Really Fast Race Cars.  To apply a rule by making an analogy, start with the Facts of an analogous case, and the case citation.  Then state what the court Held, and explain the court’s Reasoning.  Insert a paragraph break and state the fact pattern is analogous.  Then compare the Facts of the fact pattern to the facts of the case.  Apply the Rule to the fact pattern the same way the court applied it in the case.  And come to a Conclusion.

 

Escape the classroom: how to bring class simulations to life

Escape the classroom: how to bring class simulations to life

By Sandra Simpson

By Carman A. Leone, Maj, USAF[1]
Assistant Professor of Law

In the spring semester of 2017—sitting in a fluorescently lit, sterile classroom—I watched a pair of my students awkwardly negotiate in the front of the classroom with my colleague who was playing the role of an Afghan police chief.  The simulation was a roleplay assessment offered as part of the United States Air Force Academy’s negotiation course.  The students were playing the role of two junior Air Force second lieutenants who needed to negotiate security protocol with the police chief in his Afghanistan-based office.  The students mechanically applied a few of the negotiation skills I taught them during the course.  One of the students smirked at something my colleague said while in character, seemingly scoffing at the ridiculousness of the simulation.

This irritated me.  I wanted the students to take the simulation seriously and chalked up their lack of enthusiasm as their problem, not mine as the professor.

Shortly after, I realized it was my problem.  After the simulation, but before fall 2017 semester started, I participated in an “escape the room” game.  The premise of escape the room game is to solve a series of riddles and puzzles using clues embedded in a thematic setting.  Although the building which housed the game was in a nondescript industrial park, my particular game was set in a mountain hunter’s cabin, complete with trophy mounts, wood paneling, a worn bookcase, pad-locked drawers inset within a desk, and a trap-door-backed fireplace.  As I crossed the threshold from the office waiting room into the “game room,” I was transported.  Dozens of details in the room were clues that lent to a piece of a bigger puzzle.  For example, by reading backwards a riddle inside a tattered book on the inconspicuous bookshelf in the corner of the room, I realized I needed to count the number of “points” on the trophy mounts hanging on the wall, which then provided the numerical combination necessary to open a pad-locked drawer of a desk in the room.  The contents of the drawer provided another clue for the next puzzle.  For sixty minutes I felt as though I was truly locked in a hunter’s cabin, largely due to the thoughtful details which made the game authentic.

Before conducting the Afghan simulation again the following semester, I decided to transform my classroom into the Afghan police chief’s office, using the inspiration from my experience in the escape the room.  First, I placed two free-standing floor lamps in the room to provide low, warm lighting to replace the fluorescent lamps that previously shined overhead.  I moved a light-weight bookshelf next to a freestanding, dark-stained table which served as a desk.  I stocked both with a few books and mementos typical of a real office.  A framed picture of my family sat on the desk next to a collection of dry erase markers which the best students would ultimately use to brainstorm potential options on the flipchart resting on an easel just feet away from where they sat.  A framed, ornate dagger was placed on the edge of the desk for intrigue and intimidation purposes.  A side table, set with a water pitcher and four matching glasses, sat inconspicuously next to the desk.  Behind the desk, a “to-do” list was written on the large whiteboard, serving as clues to the interests of the police chief, about which the wisest of student would inquire.  There were dozens of planted details and clues that students could have used to help unlock success in the simulation.

Remarkably, very few students used the clues that were within fingers’ reach of where they sat.  The students who performed the best identified the planted clues and used them effectively.  For example, students who noticed the framed picture on the desk and asked whether the Afghan police chief was a father or husband, created a terrific opportunity for rapport building.  Even better, those students who asked about to the “to-do” list written on the whiteboard behind the desk unlocked a number of interests of the police chief that were not otherwise apparent.  One of the best pairs of students asked the Afghan police chief to sit at the side table where they all would be more comfortable, eliminating the power dynamic by removing the police chief from behind his desk.

In a debrief following the exercise, students noted just how unique the experience was.  Many reported feeling nervous and unsure of themselves when they walked into what they described as “the dim lair of the Afghan police chief.”  Some claimed to have recognized the planted details, but many admitted they did not know what to do with them.  Some recounted the adrenaline they felt walking into the room, as if they were stepping onto the sports field ready to compete.  Others described crumbling under the weight of nervousness and uncertainty.  All agreed the experience was unique and realistic.

A few students offered ways to even further improve on the experience.  For example, one student suggested playing authentic Afghani music at the beginning of the exercise while students walk into the office to begin the simulation.  Another student offered the idea of lighting incense in the room to add to the authentic experience.

Ultimately, I offer this advice to educators concerned with the lack of enthusiasm in roleplay scenarios:  if you want your students to submerse themselves into your simulation, make it irresistibly authentic.  Not only will it improve the level of engagement, but it will provide a unique opportunity students may not experience until they graduate.

 

[1] The views expressed herein are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the U.S. Air Force, the Department of Defense or the U.S. Government.

Should I Teach To The A Or The C Student…

Should I Teach To The A Or The C Student…

By Sandra Simpson

Should I Teach To The A Or The C Student And Can Active Learning Render This Question Moot

By Rory D. Bahadur, Washburn University School of Law

Your law class has 60 students.  Within 2 weeks of class you realize that some are weaker than others as you get a sense of the responses to class questions and the responses of small formative assessments.

20 minutes into one class some students understand the black letter concepts quickly and are ready to move on to more nuanced and sophisticated examinations of the doctrine.  Others have trouble grasping simpler even elemental concepts.  What is the appropriate teaching decision at this point?  Should you revisit the doctrine to try to get every student on board or should you teach to keep adding complexity and information to avoid boring some students with repetition of concepts these students already understand?

This continues to be a challenge to many professors and I guess in a very unscientific manner my solution was to consider myself having done it right if on my student evaluations “a few” students said that I went too quickly.  That way I felt only a few complained and the pace was therefore not too slow for the majority/middle.

More recently I have taken to doing the traditional teaching at a pace that suits the students who are getting the material the fastest.  This takes about 1/2 the classroom time that I would need if I was doing the same presentation for the majority/middle.  At this point some students look at me and are woozy from information overload.

At this point in the lecture I divide the class into groups of 3-5 students. These groups are different each time and are randomly created and consist of students all along the spectrum of doctrinal understanding.

I then handout a series of short problems based on the material we just covered way too quickly for most students to feel comfortable.  The first problem is very basic but each becomes slightly more complicated.  Each group assembles in a particular region of the classroom and each group is required to do each problem.

For example after teaching the basics of assault and battery in torts I distribute the following problem set to the groups.

Problem Set

I ask each group to type up the perfect answer to each problem.  After each problem in italics are the substantive concepts I hope the particular problem invokes.

After about 15 minutes of group work we begin to discuss the hypotheticals.  As a group the students respond to the questions and one student from each group reads the typed up group answer.  When they are done I ask if any groups disagree and why with the explaining group’s conclusions and reasoning.  I do this for each question and I simply moderate the discussion without leading it.

The following pedagogical concepts are engaged in the process:

  1. Collaborative work as they are chatting and collaborating about the doctrine to come up with the answers
  2. Experiential work as they are problem solving
  3. Students take the role of teacher. People who understand concepts and come to the answer quickly are questioned by those who did not within the group.  This explanation or verbalization of concepts to explain to others requires an understanding of the material.  And as all of you reading this know if you want to learn a subject then try teaching it.  Remember the first time you taught any class how much learning occurred.  LoL
  4. Active learning, students are engaged in learning activities that they do at their own pace and they develop their own contexts for understanding the doctrine not those of the perceived “uncool, geriatric lecturer” in the room.
  5. The groups are less formally hierarchical and lower pressure than the typical law school classroom

Basically this active portion of the class renders the “to whom do I teach,” question irrelevant because the students who got it are learning it even more thoroughly by having to explain it and the students who did not get it when I taught it have the opportunity of another method of delivery of the concepts.

The hardest part about this for us ego driven professors is realizing that after my initial teaching of the concept those students who don’t understand it from me may never understand it from me so why get in the way of their learning and waste class time by stagnating the learning and braying about the doctrine repeatedly.

Institute for Law Teaching and Learning