I. Introduction
At present, the course is designed to involve six credits of class time at the Law School, a half day weekly internship in Family Court, and the playing out of a complex simulation involving the students as attorneys for one of four participants in a Family Court educational neglect proceeding. Each of the clients is played by an actor, and each of the attorneys has, in addition to the client, a supervising attorney/mentor from the world of practice. This page is designed to provide more background than any rationmmal person might want for those people foolish enough to have agreed to be either a client or a mentor. The goals of the course are detailed below. In addition, the documents available to the students are available through the drop-down menus at left. NOTE that the simulation takes place in Winter 1994, and that when it starts out it is approximately January 25, 1994.
Students have access to their attorneys through group discussion pages on the course website. You have access to all of those group discussion pages and the drop-down menu at the right will take you to them via shortcut. They have access to their clients through individual discussion pages in the website, and you have shortcut access to these via the drop-down menu at left as well.
You can get to the web page that the students see by clicking on either of the class photos at right.
If you ever need to reach me my home number is (212)348-0815, at CUNY my number is (718)340-4324, and my cell phone number is (917)804-3210, Messages left at home get to me fastest and mostr reliably. My e-mail address is farago@mail.law.cuny.edu.
II. Goals by Task
I see the course as being first and foremost about strategic thinking and clinical judgment; component skills involve the capacity to do research, analyze and synthesize caselaw and statutes, and advocacy writing and oral argument. Each role has built into it significant professional responsibility issues that should be a basis for permitting you to urge your students to read specific sections of the Code of Professional Responsibility (which will, of course, not resolve the problem, but might help define it).
The shape of the semester is roughly as follows:
The students begin with an assignment that places them in role as a special education impartial hearing officer. They are asked to take over a hearing in which testimony has been taken by someone else who has become indisposed. They listen to the tape of the hearing, read the transcript, observe an actual hearing, receive roughly the same training that new hearing officers receive, and have to decide a threshold procedural motion: is the uncle of a disabled child, with whom the child has lived for many years, entitled to ask for a special ed hearing even though the parents are alive and known and no formal custodianship exists? It's an open question under the existing statute, and they have the capacity to rule either way.
B. The Primary Simulation: Family Court
The research process, The students are then assigned to role groups (there are four roles in the Family Court proceeding: the state, CWA; the respondents: the child's parents, Chaim and Lifsha M; the child, Hannah M.; and the uncle, Jack M.) and argument groups (an argument group includes one student from each role). Each role group has a supervisor (one of you) with whom they will work through the remainder of the semester, also in an appropriate role. And each role group has a client or client surrogate (actors play Jack, Lifsha, the CWA caseworker, and the law guardian (Legal Aid) social worker.
The students represent their clients individually, not as a single firm. The clients are told that they don't have to tell each student the identical information. I do this in order to encourage students to develop theories of the case and strategies that reflect their own understanding and their understanding of the client's goals. The facts of the case are deliberately designed to generate a wide array of potential choices within each role. In at least two of the roles there is no particular preference built in even for something as basic as whether to favor or oppose the motion that forms the core of their work. It's up to them (in consultation with you). Nevertheless, they can use their role groups as contexts to brainstorm or get support, though I try to keep them focused on using the groups to frame questions, leaving the answers up to the individuals (once the group starts trying to reach answers, some people's views have a tendency to dominate and a false consensus emerges with everyone zeroing in on the same set of lawyering choices; I work hard to counter this, to encourage students to find and follow their professional muse, and to hear the distinctive choice explicit or implicit in the research, strategy, analysis, and writing that they do)
Once in Family Court the uncle petitions to join the case. It turns out that he more or less has to ask to be added as a respondent. The case is brought in Family Court as an educational neglect proceeding under Article 10 of the Family Court Act. Under Article 10, the proceeding is sharply divided into two phases (roughly comparable to a trial and, if necessary, a sentencing). The first is fact-finding in which the charge is tried. The burden is on CWA (now called ACS, but the case takes place in 1994 and the agency was called the Child Welfare Administration), and to prevail it must demonstrate that the parent's actions warrant a determination that they were unfit. If so, the case goes on to a dispositional phase in which the court decides what should be done to try, if possible, to repair the family. A range of interventions can take place, including removing the child from the home (and assigning him/her to CWA's custody -- foster care) for up to a year.
The Family Court Act does not permit people not named as respondents to intervene in the fact-finding phase, though it expressly permits them to intervene in the dispositional phase and in temporary custody hearings (which may take place during fact-finding). So the Jack's motion to intervene has to challenge the statute. This requires the students to work with quite complex doctrinal material arising out of Constitutional substantive and procedural due process.
The students interview and counsel their clients, engage in open universe research, incorporate some of the material we discuss in the doctrinal part of the Law and Family Relations course, and develop a memorandum of law either supporting or opposing the uncle's motion. They argue the case (twice, once before a practitioner, during class; then soon after that before a Family Court judge in Brooklyn Family Court), and the judge sends them off to seek a negotiated settlement (of the entire case, not just the motion).
Factually, as the first weeks unfold, the students get information that both deepens the factual context of the case and renders it increasingly clear that the uncle is a very problematic custodian. Certainly a poor long-term option, perhaps not an acceptable short-term one. And yet there do not appear to be any clear better alternatives in the picture.
Thus, the Family Court simulation has a wide range of lawyering goals:
Here are the objectives of each of the simulation tasks:
The research process, of course, spans the entire semester, in a dialectical sort of way, as the students' theories of the case continue to evolve with the introduction of new facts and as they interact with others. But the core basic research skills assignments are in the first two weeks, and the fundamental research task is in the first week. The resources they have available to them include the law library (at CUNY and at New York Law School), reference librarians, you, and me. Again, the goal is not to guide them to the answers, but to assist them in finding the answers themselves. Collaboration during this phase seems fine, perhaps even desirable, to me.
Assuming that each student has determined his/her view of whether to support or oppose the motion, they need to develop substantial research leading to a theory of how to do so. In general, this means some sort of constitutional challenge (or a defense against any such likely challenge).
Resources available include their legal research and their supervisors. Supervisors can be contacted through whatever means you work out with your students, and also through a discussion forum on the class website limited to your students and you. For those for whom it helps to look at some more conceptual work, Articles Packet 3 includes two sources on expanding the legal definition of 'parent.'
This is the task about which it is most important that students not collaborate. Not because of a rule barring collaboration but as an effort to convey to them that the heart of what it means for them to be an independent professional is that they have to trust their own individual judgments and not substitute those of colleagues or supervisors. They need to be aided in determining what they think is the best theory for their client (while remaining connected to their accountability to client decision making and goal setting). It is especially tempting for students to devolve into seeing the simulation as being about Jack, whether or not they represent him. A critical goal here is to refocus them on their own client, even though the motion is about Jack. "But enough about Jack, what does your client think of Jack?" Even when they are articulating arguments that favor or oppose adding Jack as a party,. their choice of argument can and should sound in a theory that favors their clients' broad stroke strategy for the case, not just their narrow preference about whether or not the motion should be granted.
Doctrinally, they engage with:
So the aim of this part of the research task, which is ongoing, is to see the interaction between research and strategy. As strategy develops, one need find authority; as one finds out what the cases and materials say, one need rethink one's theory in light of what one's found.
Like that. A spiral, zeroing in on the argument.
The following cases, available in the materials and on the website, could be used in building an argument:
The goal here is to view fact statements as advocacy opportunities. Only after the student has a theory can he or she determine which are the key facts to include, and among those which ones to stress and in what order. The goal is to recognize the interaction between theory of the case and the articulation of the facts.
Resources can be found in the Advocacy Writing packet (Skills Packet 1)
5. Client Interviewing/Counseling
This is an especially rich aspect of the simulation. Students have access to actors who are familiar with their roles and who have been,. in the past, quite convincing. They goals of this aspect include:
This is the aspect of the simulation that has the greatest degree of artificiality, because the students are drafting their memos before seeing each others' work. In particular, the roles other than Jack's attorney don't really have a clue what the basis for Jack's motion will be. And there is no explicit opportunity to do reply briefs once they learn. I haven't found a way around this and it always bothers me. On the other hand, this actually serves a good purpose because it requires them to develop the skill of trying to think like the other side and anticipate arguments that might be made.
This is a relatively straightforward advocacy writing assignment. The thrust, as throughout, is to encourage students to find a voice that speaks consistently on behalf of their client, not just by seeking to achieve client aims, but by doing so in a way that furthers their client's capacity to control the shape and direction of the litigation generally.
I think of myself as editing, not evaluating or correcting, the students' writing. I am looking for the arguments they are trying to make and I seek to help them articulate them, whether or not I think the arguments are the best ones (or good ones, or even acceptable ones) that could be made on their clients' behalf. This is hard for me, because I have views about what are the best arguments in each role, and it is especially hard when the student is just plain wrong. But I try, at the outset (beginning in the articulation of the theory of the case), to get the memo to a place where it adequately expresses the student's argument in a complete and detailed (stepwise) manner.
Often this means that we initially work on unpacking compressed arguments (sometimes arguments that take the form of naked conclusions; even when a conclusion is all that a student has written, I find that they almost always have a complete, if unarticulated and perhaps unconscious, legal argument in their heads) and on organization. I think it makes sense to work on these even when the student's analysis is so wrong that it's just off the wall (because if we don't get it articulated and on paper, the student won't have a hope of seeing where the flaws lie).
Once that's accomplished, we look at the argument itself. It's rare that what we've got at this point is totally wrong (it's happened once in 5 years and about 200 students). If it is, I try to get at the problem by looking at the student's authorities with the student and seeing where it comes apart. If, on the other hand, it's at all supportable from the authorities, we work on polishing, honing, making the advocacy as sharp as possible. When it's successful, this leads to a draft in which it's possible to discuss individual word choice or phrasings in terms of their advocacy impact (one way to do this routinely, sensitizing the students to word choice, can come from focusing on how to refer to Jack: 'Jack' v. 'Mr. Jack M.' v. 'the uncle' v. 'the child's uncle' v. 'movant' . . .each has a different connotation and in the course of an entire memo can affect significantly the tone of the text).
We revise at least once per feedback cycle ( two weeks during the regular year, one week in the summer; or more swiftly if the student wants) until the student is happy with the result or the semester ends (I'll keep going after that, though it's rare that either of us has the stamina). Generally I'll tell a student when I think they've got an acceptable document, but sometimes they keep going because they want a writing sample or they want to respond to feedback on what I would certainly have taken as the final draft. I stress to them that they are not graded on how perfect they get it to be but on the writing process (and so once it seems done to me I tell them that this is what I'll grade; if they keep going it's for the pure love of revision). Most students get it done in 3 full drafts (including the first), some go 4 or more.
The students argue twice. Once in the classroom (before a practitioner they've never met) and once in Family Court (before a Family Court judge). There is a gap of a few days to a week between the two. I videotape at least one. We look at the tapes in class and discuss strengths and weaknesses after the first round. I try to highlight the fact that the most effective arguments are often low key discussions, not great orations. I encourage all the judges to be very hot benches.
To be honest, I don't expect much from this aspect of the course. I do it because it is fun for the students and it crystallizes their work, but I like the fact that the semester and the simulation don't end here. My goals include:
This is meant to introduce students to the fact of negotiation and its role in lawyering. I don't try to work on skills in the one week we have for the task. Just on doing and reflecting. Again, I rely on the multivalent nature of the simulation to make it more complex than a zero-sum game. The judge sometimes rules on the motion and sometimes reserves judgment, but always ends by redirecting the focus to the merits of the charge and telling the parties that unless the parents and uncle can come to terms on dealing with decision-making about, and responsibility for, Hannah, he or she intends to remove her from the family entirely. Hence, an effort at a negotiated settlement of the merits. There's a deadline, and they have access to their clients via phone and the web.
When it's over we have a panel discussion with some of the attorneys who worked in the case on which the simulation is based. "Whatever Happened to Hannah M.?"
The way things play out, it is often, but not always, possible to reach a settlement. It depends largely on what the clients wind up saying to the attorneys. In general, the only way to reach a full settlement is to expand the pot, to get additional alternatives or resources into the mix, and doing so requires the client being sufficiently trusting of the attorney to be able to think outside the box, and to be honest about the constraints and conflicts they see; it doesn't always happen and requires more skill in the counseling/.interviewing area than in negotiating. This is conscious: students think of negotiating as arm wrestling and often don't focus on the fact that not only does the client get to decide whether to sign off on an agreement, it's the client who defines the boundaries of the negotiation.
When possible, I have them tape the sessions. I always have them keep a journal of their contacts.
One thing to bear in mind is the fact that this is the one area in which students will all have done some work before law school (buying a car, buying a house, getting one's kid to go to bed on time, . . . ). As such, it's the area in which they come with the greatest disparity of skill levels, and the greatest disparity of confidence levels.
III. Goals by RoleEach of the four roles has a somewhat different set of objectives associated with it: