Teaching Torts by Integrating Ethical, Skills, Policy and Real-world Issues, and Using Varied Pedagogical Techniques: Reflections on Using the Henderson, Pearson and Siliciano Casebook

• Publication year: 2001
• Citation: Vol. 25 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001

Teaching Torts by Integrating Ethical, Skills, Policy and Real-World Issues, and Using Varied Pedagogical Techniques: Reflections on Using the Henderson, Pearson and Siliciano Casebook

Lynn M. Daggett(fn*)

I. INTRODUCTION

As a new law professor in 1991, I expressed interest in teaching Torts and was so assigned. At the law school where I work, Torts is a two-semester class mandatory for the first-year students. In the past, Torts was a six-credit class but has, along with other first-year subjects, recently been reduced to five credits.(fn1) The law school is relatively small with the first-year class typically consisting of 170 to 200 students. Each first-year substantive class is broken into two sections.(fn2) The students at the school generally become practitioners rather than academics, many in general practice firms.

Before coming to academia, I was in private practice, primarily representing public school districts. This practice included some tort work, but not an extensive amount.(fn3) Additionally, I had never been a full-time teacher, although I fortuitously had some formal training (a Ph.D. in Educational Psychology) and a series of part-time teaching "gigs."(fn4) I also had vivid memories of my own experiences as a law student, which I was determined to use (or to avoid) in the classes I now teach.

The curricular structure and my practice and educational background led to a number of specific goals and philosophies for my Torts class, and thus for the casebook which would so extensively influence students' Torts learning. Ten of these goals and philosophies and the extent to which my chosen casebook fits them are discussed below in Section II. Briefly, I believe that a Torts class should integrate ethical and moral issues, skills work, critical evaluation of doctrines, exposure to diverse ideological perspectives, as well as real-world issues. Rather than relying primarily on either lecture or Socratic questioning, I use a variety of teaching methods. This approach gives students an active role in their learning process. I also evaluate their performance throughout the semester using an assortment of exam formats.

Based largely on these goals and philosophies, I selected Henderson and Pearson's The Torts Process casebook, then published by Little, Brown and in its third edition.(fn5) Ten years later, my teaching goals and philosophies are largely unchanged, as is my casebook of choice. Henderson(fn6) and Pearson(fn7) have added Siliciano(fn8) as a third editor, Aspen is how the publisher, and the casebook is in its fifth edition.(fn9)

I am a demanding casebook consumer, and in some other courses, I have not found any casebook that is a good fit for my class. The Henderson, Pearson, and Siliciano casebook is probably the best fit of any casebook I have found for any course that I have taught over ten years. Furthermore, from my years of use, I have found several specific strengths and a few weaknesses of the casebook that were not anticipated when it was initially chosen. In brief, the Henderson, Pearson, and Siliciano casebook includes materials on ethics, problems and other skill-based activities, a diverse set of ideological perspectives presented in a non-preachy way, and addresses numerous real-world issues and concerns. The casebook also lends itself to the variety of teaching and active learning methods I employ in my Torts classes. These are discussed in more detail below in Section III.

II. Finding a Good Fit With Teaching Goals and Philosophies

A. Coverage of Ethical and Moral Issues

For several reasons, it is essential that law students consider ethical and moral(fn10) issues throughout law school.(fn11) First, in practice, clients' problems are not either ethical or substantive; both types of issues are typically involved. Thus, it is dangerous for law students to learn doctrines, review cases, and analyze fact problems in class and on exams without reference to the relevant ethical and moral dimensions. Coverage of ethical issues in a stand-apart Professional Responsibility class in some ways heightens this danger. This curricular structure allows some students to think that ethical issues are somehow separate from the doctrines they are exploring in substantive classes and need only be considered in a separate segment of their professional lives. Moreover, since students do not take the Professional Responsibility class until their second or third year, they often spend at least their first year of law school thinking about doctrines and problems without regard to the related ethical and moral dimensions, setting a pattern which is hard to break later. In response to this problem, my law school has recently adopted an integrated approach to ethics. While students still take a separate Professional Responsibility class, the faculty has created a list of ethical values that it wants students to be exposed to and has assigned responsibility to specific substantive classes. A list of the values assigned to Torts is included in Appendix I.

Second, relegating ethical issues to a separate Professional Responsibility class and studying them in a stand-alone fashion does not give students a chance to explore them in the context of specific areas of law. For example, with regard to tort clients, students may need to consider (1) the impact of ethical rules concerning financial dealings with clients when handling cases for a contingent fee, (2) the ethical rules concerning client control of the course of representation when the client is an insurance company defending a claim for an insured, (3) the ethical considerations evoked when a cash-starved tort plaintiff is offered a settlement that is probably less than they could recover at trial, or (4) the ethical considerations present when parents are suing on behalf of an injured minor child.

Third, it is essential to attorneys' mental health to consider the ethical and moral issues involved in their clients' problems. Simply put, while we may disagree over what is right and wrong, we all have a personal sense of what is right and wrong. While clients ultimately control the course of representation, and in later stages of litigation attorneys may not be able to withdraw when they disagree with a client's direction for ethical, moral, or other reasons, attorneys do have some control over whom they represent in the first instance. Moreover, whoever their client is, attorneys need to remain connected to their own sense of right and wrong, rather than shut their values away in order to serve their clients.

A brief exercise I use in Torts and other classes illustrates how easy it is for attorneys' own beliefs to be swayed by the position their client needs them to take. I divide the class into two groups at random (typically by drawing an imaginary line down the middle of the classroom) with one half of the class being assigned to represent the plaintiff and the other half the defendant. Students then argue over the problem against each other on behalf of their client. Later, I ask students to objectively vote on who will win the case. Invariably, the vast majority of students "objectively" believe that their randomly assigned side will win. I then point out to the class how easy it is to fall into believing in a client's side but note that they need to remain truly objective for the sake of their own health and to be the best advocate for their clients.

One of the many reasons I am drawn to the Henderson, Pearson, and Siliciano casebook is that it includes ethical and moral issues in its notes and problems. One of the best examples of this is a problem involving not only a substantive duty to rescue issue but also a longtime client who has left the scene of an accident and lied to the police in an attempt to cover up an affair.(fn12) The casebook authors include excerpts from the relevant Model Rules concerning client control of representation, confidentiality, candor toward the court and others, and withdrawal from representation,(fn13) as well as an overview note on the moral issues involved.(fn14) The students are forced to puzzle out their options. Some students are initially inclined to perpetrate a lie in pre-litigation settlement discussions or in court, others to correct a lie without client consent, talk the client into correcting it, or withdraw from representation. Students are surprised to discover which conduct is permitted by the Model Rules and begin to think about which actions are tolerable or comfortable for them professionally. While struggling with the complex ethical issues, the students are also working through a problem with meaty torts duty to rescue, causation, and proof issues.

This problem is not the only occasion in which ethical or moral issues are addressed in the Henderson, Pearson and Siliciano casebook. Students get a basic exposure to the Model Rules and...