Approaches to Incorporating PPS into Civil Procedure
The following are descriptions of various approaches used by the LEAPS Panelists for incorporating PPS in their civil procedure classes.
I incorporate problem-solving in my civil procedure class in four ways: 1) I use a casebook with problems (currently Ides and May) and spend time in each class asking students to answer at least one of them, often with the formality of standing, “making an appearance” for the record, and making an argument; 2) I frequently do a variation on traditional “Socratic” dialogue by playing the role of the client (one or both sides) in casebook cases and asking students to counsel me about the outcome/implications of the judicial decision they read (and depending on my teaching goals that day, I vary the client’s “sophistication” … often using the device …”I read on the internet that…”) [NOTE: in addition to being an effective way to explore doctrinal “content”, I use this approach to help model and practice the all important skill of delivering bad news]; 3) from time to time I explicitly ask students to add “interests” identification to their briefing of assigned cases and spend class time discussing what processes (in addition to, or instead of, litigation) would be good options to consider utilizing as a problem-solving lawyer. The specific classroom prompts are: a) what were the interests of the different parties in the case, named or not? b) was there a better process than litigation to satisfy the parties’ interests? c) what solutions, other than those ordered by the court, might have resolved the conflict among all interested parties?; and 4) I provide the class with a master hypothetical (this year I’m using the Illustrated Guide to Civil Procedure) which exposes students to a “real” client in a complex factual universe, including pleading and discovery excerpts [NOTE: I try to refer to the master hypothetical at least once for every subject we cover in the course].
Susan Nauss Exon:
Over the years I have developed a series of Motion Hearings designed to help civil procedure students review material before moving on to new concepts. Students are instructed to rely on particular cases, statutes, and court rules from the casebook and not conduct outside research. Students play the role of attorney advocating for a party; sometimes students are asked to submit their persuasive points in writing and sometimes they orally argue in front of the class. Additionally, I use lots of hypotheticals in class, both orally and as part of problem sets handed out in advance of a particular class session. Many times as students discuss cases, I will ask them to take the position of an attorney to advocate for a particular side, or to take the position of a client to help them understand underlying interests and help to facilitate a discussion of public policy issues. Once a year, my upper division mediation students conduct a mock mediation in front of my 1L Civil Procedure students to help illustrate how court-connected mediation fits into a litigated case. We also examine sample pleadings and other court documents.
I incorporate problem-solving into my civil procedure class in three ways. One, we work through actual civil procedure problems/hypos to see how the doctrine plays out in practice. Two, we use literature and movies to illuminate the dynamics that animate procedural choices and priorities. Three, we read the backstories to our appellate cases (e.g., Civil Procedure Stories) when possible to foster more "legal realism" in student thinking.
I incorporate problem-solving into my civil procedure class by having the students: work through hypotheticals and provide advice to fictional clients or prepare to provide such advice; work in small groups to engage in tasks such as writing a demand letter or complaint; meet with a judge (a Third Circuit judge this year) to work through a discovery dispute; talk about why lawyers made the choices they did in some cases (e.g., Adickes); use "mediation" and "arbitration" to resolve a dispute between soon-to-be-ex legal partners; and, on the exam, ask the students to advise clients regarding their options (which can include pursuing settlement).
I incorporate problem-solving into my civil procedure class by having the students: read a book (e.g. “A Civil Action” or “The Buffalo Creek Disaster”) to which we can then refer for practical insights throughout the semester; participate in role-playing exercises not only as attorney advocates but also interviewing/counseling clients or trying to settle disputes; discuss why clients or attorneys do/should make particular strategic choices (sometimes through role-playing exercises); and consider the actual or hypothetical back stories of cases that we read (Why was this case brought? Why was it not settled? Why was it appealed?). This semester I am using a fake case file for a variety of exercises that will also help students understand the complex goals constraints facing clients and their attorneys.