|VOLUME 42 ISSUE No. 2 | WINTER 2011|
The Case for Pretrial Practice's Inclusion in All Law School Curricula
“Honestly, this was probably the most valuable class I have ever taken in law school. . . .This is a must for any student!” “Fantastic, practical experience.”
These comments from students in last spring's Pretrial Practice class validate the vision I had when I asked to teach the course for the University of New Mexico School of Law.1 My desire to teach this course arose from my own experiences as a law student in the late 1990s, feeling there was a gap in that education. Although I appreciated traditional theory classes and their importance, I was constantly seeking opportunities to “practice” law through externships and other “real world” experiences. But when those opportunities arose, I found I lacked basic knowledge and skills, from an understanding of the progression of a case to how to approach components of cases such as writing a complaint, preparing and responding to motions, and how to go about getting a case resolved. I wished there had been a class to teach me these steps so that I did not have to scramble to figure them out in real cases. What I was wishing for was Pretrial Practice.
The integration of Pretrial Practice into law school curricula is a logical and effective response to the findings and recommendations of these studies.
Law Schools' Current Approach
Trial advocacy courses are another popular response to the call for skills-centered education. Almost all schools offer an upper-division course in trial advocacy.11 These classes do teach practical skills and apply them to simulated “real-world” experiences. However, these classes alone do not create the bridge that is needed. A majority of civil cases are resolved by settlement; only about 3% are actually resolved through a trial.12 Therefore, trial advocacy classes, while teaching important skills, are theoretically only preparing students for 3% of the cases they will handle in their clinical experience or in their future practice as lawyers. As pretrial practice exists in every case, regardless of how it is ultimately resolved, Pretrial Practice is a more effective means of teaching the skills required for all of the students' very real future cases. Since pretrial procedures apply to every case, it makes no sense that Trial Practice is universally taught while Pretrial Practice is not.13
The Role of Pretrial Practice
I began teaching Pretrial Practice at the University of New Mexico School of Law in 2003. From 2003 to 2007 the class was only offered once every other year (2003, 2005, 2007). The class was always full,14 with not all students wanting the course being able to take it. In 2008, the course started on a yearly schedule, offered once in the spring semester.15 Practicing attorneys serving as adjuncts teach the course, which has been offered as either a two-credit hour or three-credit hour class. In the two-hour class, only one mock case is used, in the three-hour class two are utilized. In both cases the class proceeds as follows: 1) students discuss the case-selection process, including client interviewing, fact investigation and witness interviews; 2) students then work on developing their case and draft a Complaint, considering issues such as which parties and claims to include and jurisdictional and venue choices; 3) students exchange Complaints with classmates and draft Answers to the Complaint received, including affirmative defenses and the consideration of dispositive motions; 4) after Answers are completed, students begin the discovery process, learning to draft interrogatories, requests for admissions, and requests for production; the class also touches on other discovery methods such as independent medical examinations (IMEs) and subpoenas; 5) students prepare to both take and defend a deposition; 6) students draft appropriate motions and argue those motions at a mock hearing; 7) students prepare for a mediation of their case and draft a position statement for the mediator; and 8) students participate in mediations and discuss the results with the class.16 Throughout the course, the professor can add factual and ethical issues not part of the text, in simulation of real-life circumstances beyond counsel's control.17
At each step in this process, students not only receive timely feedback, but are also engaged in self-reflection and constructive reflections on fellow-students' performance. In the case of live experiences, such as witness interviews and settlement conferences, the professor asks students for a self-evaluation, then provides them with his or her evaluation. With written activities, such as drafting pleadings, the professor strives to provide written feedback no later than the next class meeting. Through student exchange of pleadings, such as complaints to which other students will prepare answers, students receive indirect written feedback from their classmates as well. Both the instruction and the feedback provided by the instructor focus on the technical aspects of the skill being learned, relevant legal theory and strategic considerations. Pretrial practice integrates theory and practice in an interactive setting.
How Pretrial Practice Addresses Identified Educational Needs
Pretrial Practice is also one of the experiential courses, specifically the simulation-based classes, discussed in Best Practices.18 Best Practices describes why experiential learning is such a powerful educational tool. In addition to learning through performing skills, learning is strengthened in this setting through feedback and reflection.19 Best Practices concludes that the best experiential learning occurs when there is “a continuous, circular four stage sequence of experience, reflection, theory, and application.”20 That method closely matches students' own assessment of how they learn in the Law School Survey of Student Engagement (LSSSE).21 Pretrial Practice can provide this type of ideal experiential learning.
The Need for Integrating Pretrial Practice into Law School Curricula
Because Pretrial Practice is an economical and easily taught class, there is no reason for this gap in legal education. Law schools can look to practicing attorney adjuncts or others already in their faculty to add this course to their curricula. Excellent teaching materials already exist, and the lead time to add such a course is minimal. Such an addition would be an asset to any curriculum--and the students will thank you.
In this Issue
The Case for Pretrial Practice
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