Building a Better LRW Program: The Discipline Evolves Ellie Margolis and Susan DeJarnatt

1. Building a Better LRW Program:The Discipline EvolvesEllie Margolis and Susan DeJarnatt

2. Overview • Fully integrating research and writing • Teaching through the problems • Grading only the final project • Reusing assignments

3. Overview: Semester at a Glance

5. Total Integration of Research and Writing • Extension of Process Model • Real-World Context • Consistent with Learning Theory • No Treasure Hunt Assignments • No Closed-Universe Memo or Brief Assignments

6. Sample Assignment I have a new research assignment for you. I am attaching the transcript of an interview I had with Jackie Jones, a new client. She wants to sue her employer, Gilman & Peters, for sexual harassment and I think she has a potentially good case that raises some interesting issues. I want you to research the law for a memorandum discussing whether Gilman & Peters has violated those federal statutes which prohibit sex discrimination in employment. Specifically, I want you to explore whether Jones' facts make out a prima facie case of sexual harassment based on a "hostile work environment" theory. This is a potentially complicated case and I have assigned other clerks to research other potential claims and theories of relief. I want you to limit your research to this one theory. I want you to focus first on whether this kind of conduct even meets the requirements for sex discrimination. We don’t know enough yet on how the conduct affected Jones specifically. Wait to address that until I get you more information. This is a complex area of the law and sometimes the indexes to the research tools don't place things in categories that make sense. This is an area where secondary sources will be particularly helpful.

7. Sample Assignment (2) (continuation of sample assignment…) Epstein: Please sit down Ms. Jones. I understand you are interested in suing your employer, please tell me more. Jones: Yes. I'm at my wit's end and I want to see if I can sue my employer for sexual harassment. I've been trying to put up with it, but I was just passed up for promotion and I think it's related to the harassment. If things don't change I'm going to have to quit. Epstein: OK, let's start at the beginning. Tell me a little about your employer and your specific job. Jones: I work for Gilman & Peters, a graphic design firm in Center City. I think there are about 35 employees. I'm a designer. I work primarily with computer graphics, designing promotional materials for our corporate clients. I've been working there for three years. I really like the work, and I used to like the people, except that my supervisor, Rick Edwards, has been harassing me and everyone else has joined in. Epstein: OK, then tell me about the harassment, be very specific about what happened, when it started, etc. Jones: Well, it all started about a year and a half ago, when Rick got hired as the supervisor of our unit. Oh, I should back up and explain that because the company does a lot of Web design, all of the office computers have direct internet access through a network. One day, Rick called me and a couple other co-workers into his office to show us “something he found.” We went in and he showed us naked pictures of movie stars - Brad Pitt, Jennifer Lopez, and some others. Everyone was laughing and joking, but I didn't think it was appropriate to be looking at naked pictures at work and said so.

8. Sample Lesson Plan • The Problem • Go over fact pattern, make sure everyone understands the issue. • Discuss what they think and write key words on the board. • Make sure everyone is focused on what they are looking for (i.e., federal law, statute, cases, etc.)

9. Sample Lesson Plan (2) • Parties • Who are the potential parties? • Jones and G&P • How would you refer to them descriptively without proper names? • Employee/employer • Are they parties yet? • Why or why not

10. Sample Lesson Plan (3) • Issue • What is the legal issue you have been asked to research? • Jurisdiction • Where did the events occur? • Why is that important • What does it mean for what law you are looking for? • (go over fed. court system, weight of authority)

11. Finding the Law: Statutes and Secondary Sources Regardless of what research source you start with, you will need an idea of what you are looking for. What descriptive terms will you use? BRAINSTORM FOR ALL POSSIBLE USEFUL TERMS OK, now, where to look? • Secondary Sources – Hand out CHART • Treatises/Specialized Materials – go over from CHART • Statutes Annotated – Hand out statutory research steps and go over

12. Sample Research Questions (2) • Statute • Please give the complete proper citation to the federal statute that governs this case. (Hint: ALWD Manual Rule 14.2.) Note that although the ALWD manual tells you to cite to the “official” code (rule 14.1(b)), for this class please cite to USCA or USCS because Temple does not have the USC (the “official” code) up to date. • How did you find the statute? (e.g., index to the statute, encyclopedia, treatise, law review article). What descriptive words did you use to find it?

13. Sample Research Questions (4) • Please list two relevant cases decided by the United States Court of Appeals for the Third Circuit and one relevant United States District Court case in proper citation form. These do not have to be ones you know you will cite in your memorandum, just ones that at this point you think are relevant. (Hint: see fast format on page 63 of ALWD. Note: for United States Courts of Appeals, ignore subsequent history, which is everything after “rev’d”. See also Appendix 4 for the proper court abbreviation for the parenthetical).

14. Teaching Through the Problems • Deeper implementation of the process model • Practice the discourse community • Develop a greater sense of the audience • Learn through modeling and collaboration

15. Outline Prong 1 • Conclusion • Rule • Explanation and application / Counteranalysis Prong 2 • Conclusion • Rule • Explanation and application / Counteranalysis Prong 3 • Conclusion • Rule • Explanation and application / Counteranalysis

16. Detailed Example • Conclusion • satisfies prong 2 because injuries have caused permanent disability that will keep her from performing non-sedentary work like that she did all her adult life • Rule • Second prong requires debtor to show additional circumstances that show current inability to pay is likely to persist for a significant portion of the loan repayment period—Faish

17. Detailed Example (2) • Explanation • Faish: recognize continuing benefit of education, must show dire straits will continue • Brightful: total incapacity not within debtor’s control, certainty of hopelessness If debtor has useful education or work history, she fails (e.g. Brightful was legal sec’y, Vinci— lawyer, Greco-chiropractor) • where serious, permanent medical problems preclude work, debtor will pass: • Hoyle—depression, lousy training, chronic back pain • Mayer—mental illness • Rivera—asthma, mental health issues • Williams—kidney loss

18. Detailed Example (3) • Application • Persel has limited education, serious impediments preclude non-sedentary work, no choice in the matter • Might pass if really bad and no prospects—Queen, Carter, Young [Length of repayment period—20 years from 1995] • Persel will not improve, permanent injuries, child’s tuition costs will go up, education precludes sedentary work, learning disabilities preclude retraining

20. Grading • Grade only the final project • Consistent with Process Model • Promotes more effective learning • Synergy with other aspects of program • More freedom for the professor • Rewards students for what they learn rather than how they learn • Makes LRW like other law school courses Grading Policy To pass the course, a student must complete each assignment to the professor’s satisfaction, although we grade only the final assignment of the semester. The [early assignments] will not bear a letter or number grade when returned to you, but will be returned with detailed commentary on your work. You may have to rewrite any written work that is not considered to be of passing quality when first submitted, and any rewriting must be done to an acceptable standard, and in the prescribed time.

21. Sample Critique of First Draft Sample Critique of First Draft You have made a start with this draft, though it needs a lot of development to address all of the issues involved in the case. Your broad organization appears sound, but you need to work on the smaller-scale organization within sections. I’m not sure you have a clear understanding of the fact/opinion test (though it might just be the way you presented it), so we should go over that in the conference. It looks like you still have a fair amount of thinking to do about status and standard of care.

22. Sample Critique of First Draft (2) Who considers it? Why does the court need to do this? What is the rule involved? • Courts always take into consideration all of the applicable statutes, cases, rules, etc. This is something a legal reader already knows. Your sentence here doesn’t help the reader understand anything about Kramer’s claim. That is what the roadmap should do. • Who considers it? Avoid passive construction like this. It is vague and harder to follow than a more active, direct approach. Think about presenting the libel claim from the perspective of what the plaintiff must do, rather than the decision the court must make. • Why does the court need to do this? What is the rule involved? In the roadmap, instead of explaining how to figure out something, explain what that something is that needs to be figured out. • Where does this rule come from? What is the reason the court separated plaintiffs into different categories? What legal principle led the court to do this, and how do the status distinctions accomplish the court’s purpose? This is an unusual rule. Explain where it comes from. • This is really a continuation of the second element, rather than the third. There is no separate analysis that goes into deciding what the standard of care should be. Once the plaintiff’s status is established, the standard automatically follows (i.e., the standard for a public official is ALWAYS actual malice, there is nothing to analyze). This should be part of your explanation of the second element. The third is really just whether the applicable standard has been breached. • Your CREXAC structure is a little jumbled here. You apply one component of the statute–privilege–but just explain the others and apply later. Be consistent, either apply each term as you go, or save them all until after. Decide what makes the most sense to you. • So, how do you know when this part is met? Unlike “fixed representation to the eye,” the “harm” part of the statute is open to much greater interpretation. People might disagree on what kind of statement exposes someone to hatred, etc. You need a little more explanation of this part of the statute. • Let’s talk in the conference about how you present this test. First, you should present the test as a whole before breaking it into its parts (just like at the beginning, you present the libel claim as a whole first, and at the beginning of the “statement” section you present that issue as a whole). Second, I’m not quite sure you understand the whole test, or at least you aren’t presenting it in the clearest or easiest way. • This is a confusing way of understanding the test (not your fault, the court uses confusing language). It is very circular to prove a statement is defamatory by showing that it is defamatory. What is the court really looking for in this prong of the test? Have you looked at how the other cases talk about it? • This isn’t the second step, it is the whole test. The whole purpose of the Baker test is whether the statement conveys facts. What, specifically does the court look for? Let’s go over this in the conference. Where does this rule come from? What is the reason the court separated plaintiffs into different categories? Your CREXAC structure is a little jumbled here. Let’s talk in the conference about how you present this test.

23. Sample of Critique of Final, Ungraded Draft MEMORANDUM EDITING CHECKLIST - Jones Memo • QUESTION PRESENTED • Does your question actually ask about the legal issue(s) you address in the memo? (i.e., does the answer to the question resolve the client’s situation?)  • Unless the question presented is solely a question of law, have you included key facts? + • Have you included the jurisdiction, or controlling statute if appropriate?  • Have you checked for legal conclusions?  • Is your question clear, concise and not awkward. + • BRIEF ANSWER • Is your first sentence a quick, bottom line answer to the question presented?  • Have you summarized the law and briefly applied it to the facts of your problem? Rather than summarize, you present the full test, but then you only apply part of it. It feels like the BA stops abruptly before you are finished. • Do the QP and BA “track” in terms of key facts and legal rules?  • FACTS • Have you identified your client and briefly stated the legal problem?  • Have you included the necessary procedural facts, if applicable? n/a • Have you included all the facts that you use in your Discussion? + • Have you included enough background facts to provide an appropriate context for the legal problem? + • Have you omitted distracting, irrelevant facts?  • Did you arrange the facts in an organization that is easy to understand, such as chronologically, topically, or chronological within a topic? + • Does the section include only fact and not analysis, arguments, or conclusions?  • DISCUSSION • Did you begin with a roadmap section of an appropriate length?  • Did the Roadmap section begin with your fact-specific conclusion on the ultimate issue in the case? Did it also include a statement of the applicable legal rule(s) and any relevant factors, along with your legal conclusions and rationale? (There should be no surprises in the Discussion after the roadmap section)  • Have you organized your Discussion logically? [MACRO ORGANIZATION] • Have you used headings as signposts to alert reader to your major points? Do the headings track the organization of your Roadmap?  • Did you consciously choose the most logical order for your major points?  • Did you break down each major point into the “subpoints” you need to prove the major point?  • Does each section begin with a clear, fact-specific conclusion on the point raised in the heading?  • Within each major point did you: [MICRO ORGANIZATION] • Follow the CREXAC paradigm– • State your conclusion (see point 3d) 

24. Repeat Use of Assignments 9/14/05 A. Braugher Interview–Ben and Dina Gladstein add–5024 Morris Ave., Pac. Pal. 310-111-2030 M. 1995 in LA, 1st marriage for both Husb.--screenwriter, occ. director; now has development contract w/ Fox tv netwrk Wife–landscape designer, has own business Med hist--Dina now 43; prem. menopause; Ben--sterile due to testicular cancer, disc. 1997 attempted artificial insem. several times---no luck Went to Dr. Lora Nett (Center for Reproductive Health, L.A.) in 2001. In vitro fert. program. Tried 2 cycles of implantation, no success. Dr. Nett advised that 8 eggs were fertilized (using donor sperm), 4 implanted each cycle. Nothing took. Looked into adoption but really wanted some genetic connection. Went back to Center in 2003. Got standard hormone regimen, donor sperm; Nett told Dina 12 eggs produced, 4 implanted in Nov. 2003. Successful pregnancy. Eli born 7/20/04.

25. Repeat Use of Assignments (2) Eli healthy 1 yr old. Just started walking and talking. Good vocabulary--Mama, Papa, dog, cat, ball. Likes trucks, trains, animals. Has in home nanny 3 days/wk. Dina on reduced work schedule, home 2 days. Very shocked about Dr. Nett, always thought so well of her. After so many yrs of trying, finally have a family. Difficult to believe such a mistake could happen. Found out when the Ocostas’ lawyer (Laura Ballard) started calling them in June 2005. They spoke to Sophia Epperson, a nurse in Nett’s office, who wouldn’t confirm, just referred them to Nett’s lawyer, Mark Moore. Petition filed August 7, 2005. Don’t want to know if there was a problem with the embryos. Eli is their baby, they want him no matter what.

29. End Presentation