A Clinical Textbook?

• Publication year: 1996

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997

ESSAYS

A Clinical Textbook?

John B. Mitchell(fn*)

Imagine a clinical textbook in torts or contracts. Wait a minute, you're getting way ahead of me. I didn't say buy one or rent-to-own, I just said imagine one. All right, I can see that look on your face. You want to ask me all sorts of questions and unless you get them out of your system we'll never get to imagining. No problem, I know you can't help it, it's just your Socratic training. So fire away.

Well, to begin with, what in the world is a clinical textbook? A clinical textbook is a text which presents material so as to explicitly situate the student within the world/context/perspective/schemata of the client and practicing attorney, as contrasted with that of a law professor and appellate justice.

Don't we already have textbooks like that? Not really. We do have advocacy texts covering pretrial and trial skills, some of which include problem sets and casefiles,(fn1) and even one in which the hypothetical casefile is circumscribed by the applicable doctrine.(fn2) That's not what I'm talking about. I'm talking about texts for traditional first year doctrinal courses like torts and contracts.(fn3) Increasingly, texts for traditional courses include problems and some infrequent lawyering exercises. But as I'll discuss later, in a traditional text, "cases come first," both literally and figuratively. The cases are not framed within the context of the client or attorney; rather, the doctrine is disseminated in the context of law professor or appellate justice, and any attorney-client interaction almost always exists as a minor player in a particular case.

Why do you want to do this? Why do I want to imagine? Because then we can know what it might look like, whether it's possible, whether we even want it. You know those old car shows. They always had some "car of the future," made of strange alloys and formed in even stranger shapes. In reality, no such car ever commuted on the American road, but as the ideas evolved, various concepts from those cars were incorporated into actual vehicles. I see imagining a clinical textbook as following that tradition.

No, I mean why would you want a clinical textbook? I didn't say I did. I'm not sure I do want one. I only said I'd like to imagine one. What I am certain of is that a clinical perspective (i.e., centered on practicing attorneys and clients) should be embedded throughout the law school curriculum.

Let me anticipatorily address your question as to why I am so certain. First, the clinical perspective provides a context which is easy for students to understand. Students see movies, watch television, and read books about attorneys. Save The Paper Chase, The Pelican Brief, The Life and Times of Judge Roy Bean, and a few other odd offerings, our culture bears few traces of law professors and judges. Thus, for many students, the clinical perspective is far more accessible than the law professor or appellate justice perspective. At the very least, the clinical perspective provides an additional lens with which to view the material, thus improving overall understanding.

Second, the clinical perspective guides students in transferring the knowledge base that they have acquired in doctrinal courses into practice. Without a clinical context, students confronted with a situation triggering this law school-derived knowledge base often do not recognize the issues or know what to do with what they have learned.(fn4) Students trained with the clinical perspective have the practical information, understanding, and context necessary to recognize the issues and start solving the problem.

Third, at schools like the one where I teach, a substantial percentage of graduating students enter either a small firm or become sole practitioners. New attorneys have to know what they're doing from the moment of graduation; they have to be able to hit the ground running. These students simply do not have the luxury of doing research in a large firm while being slowly mentored, monitored, and weaned over several years until they are capable of safely handling full cases and clients (though, this is not currently even the reality of large firm practice).

Do you need a clinical textbook to impart this clinical perspective? No. There are a number of other alternatives. Many professors are creating their own problems and exercises. Also, standard texts have increasingly begun to include problems and exercises which you can use. And there are companion or supplementary materials-casefiles, exercises,(fn5) and even novels(fn6) which professors can assign to add a lawyering perspective to a doctrinal course.

What do you think of these alternatives? I think the trend of individual professors creating their own exercises and materials is an excellent one.(fn7) The professor understands what she wishes to do with the material and appreciates how it fits into her overall course.

Materials within standard casebooks have come a long way since I was in law school when all they contained was edited cases, case notes, and questions the students had absolutely no idea how to answer. In preparing this Essay, I reviewed fourteen torts casebooks and twenty contracts casebooks. These casebooks are filled with a wide variety of "stuff: law review articles, excerpts from academic books, excerpts from novels, jurisprudential material, economic analyses, photographs, history, sociology, political theory, treatise-like offerings, essays, other materials that guide students through the doctrine, "stories" about the various players in the case (before, during, and after), and on and on. Increasingly, this stuff also includes problems and some lawyering exercises. However, most of the problems are what I'd call "doctrinal"-i.e., they ask for a doctrinal response (e.g., "Does H have a claim?" or "How would you expect the court to rule?"), and do not require students to engage in role-play with a client or participate in any other lawyering activity.

There are significant differences from a clinical perspective, however, even among these various doctrinal problem sets. Specifically, there are two basic types of doctrinal problem sets. The first type situates students in an appellate case context, using abstracted case facts and sometimes citing an actual case which can be looked up to find the "answer." The second type places the student in the world of practice, coming alive within the rhetorical context of the practicing attorney. Messages are left, phone calls come in, meetings are had with clients, and associates are asked to carry out assignments and come up with answers.(fn8) By placing doctrinal analysis into a context where students are functioning in a lawyering role, this latter type of doctrinal problems generally advances what I've termed a clinical perspective.

Some texts contain lawyering exercises in addition to doctrinal problems. Most are advice and counseling exercises which, since the questions usually consist of whether or not a client should pursue some legal course of action, are but a small step from the analysis in doctrinal problems. A few texts go beyond this and require actual activity-arguing to a court, drafting and redrafting complaints, answers, jury instructions, opinions, and planning factual investigation.(fn9) These are all welcome and important steps towards bringing a clinical context into the traditional classroom. Nowhere, however, does any text ask a student to interview a client, put a witness on the stand, or cross-examine an opposing witness. In only one text could I find anything resembling materials which could be used for a negotiation.(fn10)

I have an even greater concern, however, with any approach in which a few exercises are dotted among the cases and other stuff. This approach leads to what I call the "Emily Factor".

Emily is my goddaughter who lives in L.A. Many years ago when Emily was in the middle of sixth grade I paid a visit. Sitting around the living room, I happened to notice her reading book. It was a brand new textbook that her school had just begun to use, and hoping to get ideas for my own teaching materials, I began to leaf through the book. It contained the standard reading paragraphs and comprehensive questions ("What did Claude buy for his dog?"), but it also had a "thought" section-"Claude is from France; do you think that helps explain what he did? Why? What would you have thought if someone from your school had done the same thing? Do you think we should buy frills for dogs when people do not have enough food?" Here was the authors' innovation, their great achievement. I couldn't wait to ask Emily about the excitement of dealing with these types of questions.

When I finally cornered her later that day and asked her if she found these questions interesting, she looked at me and rather matter-of-factly said, "Oh, we don't do those questions." My point is that unless the exercises are central to the structure of the text,(fn11) so that those choosing the text select it for those exercises, my best guess is that the Emily Factor will prevail, and the teacher just "won't do those questions." They'll teach what they are comfortable with, be led by the perceived need to accomplish coverage, and skip most of the exercises.

In contrast to the limited narrative provided by the...