Using Actual Legal Work to Teach Legal Research and Writing
Michael A. Millemann*
Legal research and writing (LRW) teachers should use actual legal work to teach their courses, including (indeed, especially) first-year courses.1 The legal work might come from a planned or ongoing lawsuit, transaction, or other matter. What is important is that it is real, although in my model, the teacher can add hypothetical features to customize the legal work to the particular LRW course. For example, in an appellate advocacy course, the teacher could present the legal issues arising out of a pretrial matter by summarily "deciding" them in a hypothetical trial court opinion, thus allowing the students to fully explore them in their appellate briefs and oral arguments.
It also is important that the students' work be useful or potentially useful to people or organizations that need legal assistance. This gives students a sense of personal responsibility for the legal problems of another, substantially enhancing and diversifying the educational experience by strongly motivating students to do their best work.
The LRW teacher need not personally represent the client. In one model, a LRW teacher who does not represent the client might co-teach with a clinical teacher who does. Below, I describe two courses that fit this model, and I offer several arguments in support of it.
When the LRW instructor teaches by herself, she can cull the assignments from actual legal work provided by a "referring" lawyer. The offered assistance of the LRW teacher and students might be the inducement the lawyer needs to take on the matter, or it might allow the lawyer to expand the representation to include other clients or a class of people.
The best models, I believe, can be created jointly by LRW and clinical teachers. Sixty years ago, Jerome Frank criticized legal education for its obsession with the appellate case method: "If it were not for a tradition which blinds us, would we not consider it ridiculous that, with litigation laboratories [courthouses] just around the corner, law schools confine their students to what they can learn about litigation in books?"2 Today, the laboratories are inside law schools in the form of clinics. Partnerships between LRW and clinical teachers offer many reciprocal benefits. In what follows, I describe these benefits. I begin, however, by describing the two experimental LRW courses that Professor Steven Schwinn and I developed and taught with actual legal work.
I. Experimental LRW Courses Taught with Actual Legal Work
A. A third-semester appellate advocacy course, LRW III
The first course we co-taught was the third and final course in our LRW sequence: a two-credit, third-semester appellate advocacy course, which I will call "LRW III."3 We developed the issues for the LRW students' appellate briefs and oral arguments from a post-conviction matter, which had not yet been filed and which a newly created post-conviction clinic was handling. I was the supervisor in that clinic as well. When we began work on the case, our client, whom I shall call "Mr. Anthony," had been incarcerated for thirty-five years for a murder he did not commit. We used the students' work to persuade the governor to commute Mr. Anthony’s sentence, in effect, to time served, resulting in his release from prison.
We developed this experimental LRW III course and the post-conviction clinic together. The LRW students were the research and writing arm of the enterprise, but they did not represent Mr. Anthony. The clinical students were responsible for interviewing, counseling, and otherwise representing their client under the State's student practice rule. They did this with the help of the LRW students' work product.
The record in Mr. Anthony's case included the trial transcript, appellate briefs, and previously filed post-conviction papers. We added new information as the clinical students developed it. In the middle of the semester, we froze the record for the LRW students to give them a fixed record for their appellate briefs and arguments. We identified the facts that were "in play" and added some "stipulated facts."
Professor Schwinn and I identified seven legal issues for the LRW students and divided the twenty-seven students into seven work groups, assigning one issue to each group. Within each group, we assigned a team of two students to represent the client, and two (in one case, one) to represent the State. Although "co-counsel" worked together, each was responsible for his or her own final brief and oral argument.
Using a clinical case "rounds" method, which engages faculty and students jointly as problem solvers (the analogy is to doctors in teaching hospitals), we met weekly with each of the seven groups, each of which also included one student from the post-conviction clinic. Many of the most interesting and important discussions occurred in these sessions. "Opposing" counsel, augmented by the clinical student in each work group, explored the strengths and weaknesses of the arguments, and in this give and take refined their final arguments. This process considerably enhanced the quality of the actual representation that the clinical students and I were able to provide to Mr. Anthony.
B. A second-semester pretrial litigation course, LRW II
The second course Professor Schwinn and I co-taught was a hybrid. We began with the two-credit, second-semester LRW II course, which focused on pleadings in civil pretrial litigation. To teach this course, LRW II teachers normally used a well-developed hypothetical civil case. Instead, we drew the assignments from five actual police brutality cases (involving alleged constitutional torts) and from litigation planned by a public interest organization in which plaintiffs would seek to create a constitutional right to counsel in some civil cases.4
We added a three-credit "Legal Theory and Practice" component to the LRW II course.5 Through these clinical components, teachers use actual legal work to enhance theoretical analysis, while the teachers and students provide legal services to poor and underrepresented persons and communities. The teachers use the practice experiences to critically analyze access-to-justice, professional responsibility, and other systemic issues.6
We had fifteen students in the course, all of whom selected it as their second-semester elective. A small, private law firm was counsel in the police brutality cases, and the Public Justice Center, Inc., a public interest organization, was counsel in the right-to-counsel cases.
The private lawyers obtained client approval for the students' work, helped us to develop the assignments, gave us duplicate case files, taught a class on police brutality cases, and helped answer student questions during the semester. In these cases, the students, working under my supervision and that of Professor Schwinn, interviewed the clients and witnesses and drafted complaints and discovery requests. After several drafts, which we supervised, the students provided their final pleadings to the law firm.
The right-to-counsel case generated the major research and writing assignments for the semester. These were devoted to procedural issues that Maryland’s appellate courts had not resolved, as well as one of the major substantive arguments. The volunteer lawyer for the Public Justice Center, a former Maryland Attorney General, taught a class on the issues in the case, and he and the organization’s lawyers helped us to develop the assignments.
Students worked on the police cases in groups of two to three, and we met with each group weekly. For the right-to-counsel case, we worked with the students, and they with one another, to develop possible legal theories, and then each student wrote a memorandum. These assignments were relatively open-ended; i.e., we gave the students real legal issues that had no clear answers and for which there was no direct precedent.7 We provided these memoranda to the Public Justice Center lawyers.
∗ © Michael A. Millemann 2007. Jacob A. France Professor of Public Interest Law, University of Maryland School of Law.
1 The major source of this essay is an article that my colleague Steven Schwinn and I co-authored, Michael A. Millemann & Steven D. Schwinn, Teaching Legal Research and Writing with Actual Legal Work: Extending Clinical Education into the First Year, 12 Clin. L. Rev. 441 (2006). Much of what I say in this essay is the product of our teaching and writing collaboration.
2 Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303, 1311 (1947).
3 At the time, Maryland Law School called its three courses “Legal Analysis, Writing, and Research,” or "LAWR," courses. I will refer to them more generically as "Legal Research and Writing," or "LRW," courses.
4 This litigation, which has its counterparts around the country, has been nicknamed "Civil Gideon." The public interest organization planning this litigation was the Public Justice Center, Inc. ("PJC"). This was to be next-step litigation in the aftermath of Frase v. Barnhart, 840 A.2d 114 (Md. 2003), a PJC case in which three judges of Maryland’s highest court concluded that Ms. Frase had a right to counsel in a contested custody case involving her child. The majority, however, comprising the other four judges, found the claim to be moot.
5 The students received a sixth credit for a segment on research that other faculty members taught.
6 Since the law school created the Legal Theory and Practice curriculum in 1988, faculty have added Legal Theory and Practice components to first-year Torts, Contracts, Criminal Law, Property, Legal Profession, and Civil Procedure courses as well as to a variety of upper-level courses and seminars. Day division students must take an experiential course—that is, they must choose from among a number of Legal Theory and Practice courses and clinical courses—as a condition of graduation.
7 Because we were working under the direction of and with counsel in the cases, our work, and that of our students, was protected by the attorneys’ and clients’ work-product and client-attorney privileges.