Teaching First-year Civil Procedure and Other Introductory Courses by the Problem Method

• Publication year: 1999
• Citation: Vol. 34

34 Creighton L. Rev. 245. TEACHING FIRST-YEAR CIVIL PROCEDURE AND OTHER INTRODUCTORY COURSES BY THE PROBLEM METHOD

Creighton Law Review

Vol. 34

STEPHEN J. SHAPIRO(fn+)

I. INTRODUCTION

I have been teaching the first-year course in Civil Procedure for twenty years, first for five years at Ohio Northern University, and for the last fifteen years at the University of Baltimore, where I also teach a required second-year course in Evidence. When I first started teaching Civil Procedure, I used a fairly typical case method.(fn1) I was never very happy with this approach for teaching a course in which one of my major goals was getting the students to learn to read, interpret and apply the Federal Rules of Civil Procedure ("Federal Rules"). Gradually, I began to develop sets of my own problems which I used to teach some of the classes. Eventually, I developed enough problems, so that I could teach the entire first semester of the two-semester course by the problem method.(fn2) Within the last several years I have developed enough additional problems to teach both semesters of Civil Procedure and also the Evidence course entirely by the problem method.

There has been an ongoing debate within legal education as to the relative merits of various teaching methods, especially the case method and the problem method.(fn3) Yet even some supporters of the problem method believe that it is more suited to smaller, advancedupper-level courses than to large sections of first-year courses, and other basic courses such as Evidence.(fn4) I have developed a variation of the problem method that I think works well with these courses, especially when the courses are rule or statute oriented, rather than common-law subjects.

In this article I will describe my particular brand of teaching by the problem method, and explain how and why I use it. I will also try to evaluate its benefits and shortcomings. Finally, I will provide some practical guidance for other law faculty who would like to try such an approach.

II. THE CASE METHOD VS. THE PROBLEM METHOD

A. THE ACADEMIC DEBATE

The case method of legal instruction was introduced by Christopher Langdell in the 1870's at Harvard Law School.(fn5) Although it was not well-received at first,(fn6) by the beginning of the twentieth century it had become the predominant teaching method at American law schools, and it remains so to this day.(fn7) Although there is some variation in its use from professor to professor, it most commonly proceeds as follows: For each class, students are assigned several appellate opinions to read. In class, the professor usually starts by calling on one student to state the facts of the first case and then proceeds by questioning this, and other students, about the court's opinion. Using some form of Socratic dialogue,(fn8) the professor requires the students todissect, defend and/or criticize the court's opinion. When the discussion of the first case is finished, the professor moves on to the second case, usually involving the same or related subject matter, sometimes by the same court and sometimes not. The professor then proceeds to have the class discuss the second case, much like the first, sometimes with the additional task of trying to rationalize any difference of results between the two cases.

The benefits of this approach are said to be that it teaches students to read and think carefully, logically and critically - i.e., to "think like a lawyer." It requires students to learn actively (compared to the textbook/lecture format which preceded it). In class, this means the students learn to think on their feet, and make and defend an argument. The case method also supposedly teaches students to learn to recognize the important facts and issues in a case and to separate these issues from red herrings and makeweight arguments. It also requires students to individually glean the substantive law in a particular field from the cases, rather than spoon feeding the law to students through lecture or text. It also requires the students to recognize that the law is a growing, changing body of doctrine.(fn9)

The case method, and the extent to which law faculty have come to rely on it, has also been subject to criticism. Critics, while admitting that the case method might do a good job of teaching students to understand and work with appellate opinions,(fn10) have noted that this skill forms only a small part of what lawyers actually do. Most lawyers do not get involved with a case at the appellate level, but rather most become involved at the beginning of the case. The client brings a problem to the lawyer, and the lawyer's job is to determine the relevant facts, and find and apply the appropriate law in order to either advise the client or help solve the client's problem.(fn11)

Students who have been taught by the case method usually get some exposure to problem solving, but often not until they take theirexams at the end of the semester. These exams typically involve a set of hypothetical facts constituting a legal problem, and one or more questions testing the student's ability to recognize the legal issues involved in the problem and requiring the students to discuss how the law (or a lawyer or judge) would handle these issues. The divergence between how students are taught and tested has lead to further criticism that the case method is not only ignoring the skills that lawyers need in practice, but also the skills that students need to succeed in law school.(fn12) The case method has also been criticized because it puts too much emphasis on cases as the source of substantive law, when more and more law is governed by statutes, rules and regulations.(fn13)

One proposed solution has been to turn, in whole or in part, to the problem method.(fn14) In the problem method, the students are given a set of facts, similar to a real life legal dispute (or a law school exam). Although students might still read (among other sources) some appellate cases to learn the law to be applied, the problems, rather than the cases, become the focus of the class discussion.(fn15) The problem method is more often used in advanced, upper-level classes, than in first-year courses.(fn16) By the second and third year of law school, students have already developed a facility with legal analysis and at least a basic knowledge of the subject matter. The students can then take their basic knowledge and understanding, and learn the skill of applying these in a more realistic and complex factual situation.(fn17) At this point many students have become disenchanted or bored with the case method and appreciate the novelty of a new approach, especially one that more closely approximates what the students will soon be doing as lawyers.(fn18)

There are probably a number of reasons why the problem method has been used less frequently to teach first-year courses. For one thing, many faculty have found that this method works better with the smaller class size that is more typical in upper-level classes.(fn19) There has also been a wider choice of published materials using the problem approach for advanced courses.(fn20) Another contributing factor is that first year students do not have the basic knowledge of several areas of the law, which is very helpful in working out complex problems that cut across several areas and issues. There may also be a feeling (not necessarily correct) among those accustomed to teaching by the case method, that the problem method is less efficient than the case method for teaching legal doctrine.(fn21) Many teachers of first-year subjects feel a tension between trying to acquaint the students with a vast body of substantive law and teaching the students skills, such as legal reasoning and problem solving. These faculty members are less likely to use the problem method if they view it as more timeconsuming.

Many law professors who use the case method also employ a technique somewhat akin to the problem method: the in-class hypothetical. The in-class hypothetical is usually a very short, simplified problem, presented to the students in class by the professor. It is usually devised by the professor, either in advance or on the spur of the moment, but presented to the students in class rather than before class. The in-class hypothetical is generally designed either to illustrate a specific point raised during the class or to show how the results might differ if the facts of the particular case under discussion were slightly different.

The in-class hypothetical does give the students at least some of the benefits of the problem method. Students are required to take the legal doctrine learned from the case law and apply it to a different set of facts. There are, however, some limitations. In-class hypotheticals, both by necessity and design, are usually based on very simplified facts and focused on one narrow issue.(fn22) The hypotheticals do not, therefore, provide the students practice with analyzing the more com-plicated factual situations they are likely to encounter in law practice, or even the slightly more complicated facts of a law school exam. Even when so simplified, however, hypotheticals do not always produce good student response, since the students have not had an opportunity to prepare for the hypothetical.(fn23)

B. MY EXPERIENCE WITH THE CASE METHOD

When I first started teaching Civil Procedure, I used the case...