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The Case for Pretrial Practice's Inclusion in All Law School Curricula

“Honestly, this was probably the most valuable class I have ever taken in law school. . . .This is a must for any student!”  “Fantastic, practical experience.”

These comments from students in last spring's Pretrial Practice class validate the vision I had when I asked to teach the course for the University of New Mexico School of Law.1 My desire to teach this course arose from my own experiences as a law student in the late 1990s, feeling there was a gap in that education.  Although I appreciated traditional theory classes and their importance, I was constantly seeking opportunities to “practice” law through externships and other “real world” experiences.  But when those opportunities arose, I found I lacked basic knowledge and skills, from an understanding of the progression of a case to how to approach components of cases such as writing a complaint, preparing and responding to motions, and how to go about getting a case resolved. I wished there had been a class to teach me these steps so that I did not have to scramble to figure them out in real cases. What I was wishing for was Pretrial Practice.

Effective Practices for Legal Education
Following the MacCrate Report,2 a new focus on teaching practical skills has emerged in law schools and legal education scholarship. This effort was furthered in 2007 with the publication of Best Practices for Legal Education3and its focus on placing the teaching of practice at the center of legal education. Best Practices is very direct in concluding that not only is it the responsibility of law schools to prepare students for the practice of law, but that they are falling short in this duty.4 

The integration of Pretrial Practice into law school curricula is a logical and effective response to the findings and recommendations of these studies.

Law Schools' Current Approach
Law schools have heard the call for a more practice-oriented approach to legal education.  One response, clinical education, is a popular and arguably effective way of teaching lawyering skills, though insufficient on its own.  While 83.5% of law schools report offering some form of  “live client clinical opportunities,” in 20025 only 30% of law schools required a “skills, simulation or clinical externship” course.6 The reality that clinical experiences are not available (or mandated) for all students, coupled with the limitations inherent in such experience, further speaks to the need for Pretrial Practice to be incorporated in law school curricula. Although effective for some, “clinical programs are able to teach only a few students at a time and require significant dedication of ongoing resources,” necessitating other means to teach the fundamental skills.7 Even those students who have the benefit of a clinical experience may not be trained in such a way that facilitates the transfer of skills beyond that experience, due to clinics' use of the “case-centered” approach.8 Skills may not be transferable for a variety of reasons, including that students may not engage in the same tasks, do not always receive immediate feedback, and do not spend an adequate amount of time practicing complex tasks.9 Therefore, the realities of the assigned cases may limit the extent of the pretrial process to which students are actually exposed.10 Pretrial Practice offers an unparalleled opportunity to fill the gap where clinical education is unavailable, or to act as a supplement or preparatory bridge to clinical practice.

Trial advocacy courses are another popular response to the call for skills-centered education. Almost all schools offer an upper-division course in trial advocacy.11 These classes do teach practical skills and apply them to simulated “real-world” experiences. However, these classes alone do not create the bridge that is needed. A majority of civil cases are resolved by settlement; only about 3% are actually resolved through a trial.12  Therefore, trial advocacy classes, while teaching important skills, are theoretically only preparing students for 3% of the cases they will handle in their clinical experience or in their future practice as lawyers. As pretrial practice exists in every case, regardless of how it is ultimately resolved, Pretrial Practice is a more effective means of teaching the skills required for all of the students' very real future cases.  Since pretrial procedures apply to every case, it makes no sense that Trial Practice is universally taught while Pretrial Practice is not.13

The Role of Pretrial Practice
What Pretrial Practice Is
Pretrial Practice is a simulation, skills-based course that walks students through a civil case.  The students take a case all the way from its initial acceptance through a pre-trial settlement conference. Students play the role of the plaintiff's attorney or the defendant's attorney, or both, depending on the make-up of the class. In either scenario, all students learn to draft both a Complaint and Answer and to see their case(s) through mediation.  There are several Pretrial Practice course books available; the best provide a variety of mock cases with factual and documentary evidence to help students fully “work” the cases. 

I began teaching Pretrial Practice at the University of New Mexico School of Law in 2003.  From 2003 to 2007 the class was only offered once every other year (2003, 2005, 2007).  The class was always full,14 with not all students wanting the course being able to take it. In 2008, the course started on a yearly schedule, offered once in the spring semester.15  Practicing attorneys serving as adjuncts teach the course, which has been offered as either a two-credit hour or three-credit hour class.  In the two-hour class, only one mock case is used, in the three-hour class two are utilized. In both cases the class proceeds as follows: 1) students discuss the case-selection process, including client interviewing, fact investigation and witness interviews; 2) students then work on developing their case and draft a Complaint, considering issues such as which parties and claims to include and jurisdictional and venue choices; 3) students exchange Complaints with classmates and draft Answers to the Complaint received, including affirmative defenses and the consideration of dispositive motions; 4) after Answers are completed, students begin the discovery process, learning to draft interrogatories, requests for admissions, and requests for production; the class also touches on other discovery methods such as independent medical examinations (IMEs) and subpoenas; 5) students prepare to both take and defend a deposition; 6) students draft appropriate motions and argue those motions at a mock hearing; 7) students prepare for a mediation of their case and draft a position statement for the mediator; and 8) students participate in mediations and discuss the results with the class.16  Throughout the course, the professor can add factual and ethical issues not part of the text, in simulation of real-life circumstances beyond counsel's control.17

At each step in this process, students not only receive timely feedback, but are also engaged in self-reflection and constructive reflections on fellow-students' performance. In the case of live experiences, such as witness interviews and settlement conferences, the professor asks students for a self-evaluation, then provides them with his or her evaluation. With written activities, such as drafting pleadings, the professor strives to provide written feedback no later than the next class meeting. Through student exchange of pleadings, such as complaints to which other students will prepare answers, students receive indirect written feedback from their classmates as well.  Both the instruction and the feedback provided by the instructor focus on the technical aspects of the skill being learned, relevant legal theory and strategic considerations. Pretrial practice integrates theory and practice in an interactive setting.

How Pretrial Practice Addresses Identified Educational Needs
The need to teach practice skills, and to teach these skills in a way that promotes learning, are accepted realities at this stage in legal education's development.  Pretrial Practice addresses every one of the practical skills identified by the MacCrate Report. Problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution procedures, organization and management of legal work, and recognizing and resolving ethical dilemmas are all skills developed in Pretrial Practice.  

Pretrial Practice is also one of the experiential courses, specifically the simulation-based classes, discussed in Best Practices.18 Best Practices describes why experiential learning is such a powerful educational tool.  In addition to learning through performing skills, learning is strengthened in this setting through feedback and reflection.19 Best Practices concludes that the best experiential learning occurs when there is “a continuous, circular four stage sequence of experience, reflection, theory, and application.”20  That method closely matches students' own assessment of how they learn in the Law School Survey of Student Engagement (LSSSE).21 Pretrial Practice can provide this type of ideal experiential learning. 

The Need for Integrating Pretrial Practice into Law School Curricula
In 2002, approximately two-thirds of the 151 law schools included in the Survey of Law School Curricula regularly offered Pretrial Advocacy.22 Although this is a marked increase from the 1992 survey, it shows that approximately one-third of accredited law schools did not have a Pretrial Practice class. Furthermore, the precise make-up of the Pretrial curriculum was not detailed, so it is unclear whether the law schools reporting this course cover all of the pretrial practice areas necessary to provide the best learning experience to students. If the goal of legal education is to prepare students for the actual practice of law, Pretrial Practice is a necessary component in a complete education. 

Because Pretrial Practice is an economical and easily taught class, there is no reason for this gap in legal education. Law schools can look to practicing attorney adjuncts or others already in their faculty to add this course to their curricula. Excellent teaching materials already exist, and the lead time to add such a course is minimal. Such an addition would be an asset to any curriculum--and the students will thank you.  

  1. At the time I thought I was proposing a totally new course but learned that Pretrial Practice had occasionally been offered, though not during my tenure as a student and definitely not on a regular basis. return to article
  2. Am. Bar Ass'n, Section of Legal Educ. & Admissions to the Bar, Legal Education and Professional Development—An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (1992) [hereinafter MacCrate Report].  For a history of attempts to “more intimately connect[] theoretical understanding with practical competence,” see William M. Sullivan et al., Educating Lawyers 12 (2007). return to article
  3. Roy Stuckey et al., Best Practices for Legal Education (2007) [hereinafter Best Practices]. return to article
  4. Id. at 16–17. return to article
  5. Am. Bar Ass'n, Section of Legal Educ. & Admissions to the Bar, A Survey of Law School Curricula 1992–2002, at 34 (2004) [hereinafter Law School Curricula]. return to article
  6. Id. at 20. return to article
  7. Arturo Lopez  Torres, MacCrate Goes to Law School: An Annotated Biography of Methods for Teaching Lawyering Skills in the Classroom, 77 Neb. L. Rev. 132, 133 (1998). return to article
  8. David A. Binder & Paul Bergman, Taking Lawyering Skills Training Seriously 10 Clinical L. Rev. 191, 202 (2003). return to article
  9. Id. return to article
  10. Loyd B. Snyder, Teaching Students How to Practice Law: A Simulation Course in Pretrial Practice, 45 J. Legal Educ. 513, 514 (1995). return to article
  11. Law School Curricula, supra note 5, at 34. return to article
  12. Robert A. Weninger, Amended Federal Rule of Evidence 408: Trapping the Unwary, 26 Rev. Litig. 401, 406 n.6 (2007). return to article
  13. Although Civil Procedure teaches procedural rules and jurisdictional issues, it in no way addresses the skills taught in Pretrial Practice. return to article
  14. Depending on whether there were one or two instructors, the class was limited to either 12 or 16 students. return to article
  15. Since 2007 the class has been taught collaboratively with, or solely by, Scott D. Gordon, director and chairman of the litigation department for the Rodey Law Firm, Albuquerque, New Mexico. return to article
  16. See Snyder, supra note 10, at 514 (providing a more extensive look at the actual workings of one Pretrial Practice class model). return to article
  17. “Twists” have included having a plaintiff leave the state for a better-paying job in an employment discrimination case and having a key witness die before mediation. return to article
  18. Best Practices, supra note 3, at 166. return to article
  19. Id. return to article
  20. Id. return to article
  21. Indiana Univ., Ctr. for Postsecondary Research, Annual Survey Results 2006: Law School Survey of Student Engagement, 2 (2006) (concluding that students learn best and are most satisfied when actively engaged in the educational process). return to article
  22. Law School Curricula , supra note 5, at 34. return to article

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