USAID Phase II Delegation Experiential Legal Education

USAID Phase II
Delegation
Experiential Legal Education
Observational Training and Study Tour
October 30, 2010 - November 10, 2010
3200 Fifth Avenue
Sacramento, CA 95817
Table of Contents
1. Schedule…………………………………………………………………………………...3
2. Leach and Bricker, Introduction to Trial Advocacy Exercises (Jury Selection)………......6
3. Bricker and Landsberg, Clinical Methodology PowerPoint……………………………....9
4. Pacific McGeorge Legal Clinics…………………………………………………………20
5. Seminar in Federal Defender clinic……………………………………………………...23
6. Practical Training of Law Students from State Bar of California………………………..25
7. Landsberg and Liu, LL.M. Seminar in Experiential Law Teaching PowerPoint.……….30
8. Civil Procedure (Joinder)………………………………………………………………...33
9. Macfarlane, Legal Process sample syllabus……………………………………………..35
10. Free Legal Research on the Internet guide………………………………………………46
11. Petrillo v. Rooks Complaint……………………………………………………………...49
12. Motion for Summary Judgment: Petrillo v. Rooks case assignment…………………….61
13. Criminal Procedure summary of case evidence………………………………………….67
14. Criminal Procedure problems……………………………………………………………69
15. Negotiation & Settlements role play……………………………………………………..70
16. Truden, Field Placement PowerPoint…………………………………………………....98
17. Galves, Will Video Kill the Radio Star?: Visual Learning and the Use of Display
Technology in the School Classroom PowerPoint……………………………………...109
18. Galves, Will Video Kill the Radio Star?: Visual Learning and the Use of Display
Technology in the School Classroom…………………………………………………..130
19. Sharum, Law School Teaching Technologies PowerPoint……………………………..136
20. Stanford Law School Clinics…………………………………………………………...171
21. Duties of Conservator Form……………………………………………………………172
22. Supplemental Security Income in California…………………………………………...175
23. Liu, A Reflection on and Outlook for the growth of Clinical Legal
Education in China PowerPoint………………………………………………………...176
24. Landsberg and Liu, Blaustone’s Six Step feedback…………………………………….189
USAID Phase II Delegation
SCHEDULE
October 30 – November 10, 2010
OCTOBER 30 /31 – SATURDAY/SUNDAY
Arrival and welcome orientation
NOVEMBER 1 – MONDAY
8:15 – 8:45 a.m.
Trial Advocacy introduction with Jay Leach & Cary Bricker
8:45 – 9:45 a.m.
Trial Advocacy Class with Jay Leach & Cary Bricker
9:45 – 10:15 a.m.
Trial Advocacy discussion with Jay Leach / Cary Bricker
10:30 – 12:30 p.m.
Clinical Methodology by Dorothy Landsberg & Cary Bricker
12:30 – 1:30 p.m.
Lunch - Welcome to Pacific McGeorge
1:30 – 2:30 p.m.
Tour of Pacific McGeorge
2:30 – 3:00 p.m.
Intro to Crime Victims Clinic with Kathleen Benton
3:00 – 4:00 p.m.
Crime Victims Clinic – Case Rounds with Kathleen Benton
4:00 – 4:30 p.m.
Discussion with Kathleen Benton
4:30 – 5:00 p.m.
Tour of the Clinics with Dorothy Landsberg
5:00-5:30 p.m.
Reflection
NOVEMBER 2 - TUESDAY
9:00 a.m.
Seminar on Experiential Law Teaching Introduction with Dorothy
Landsberg
9:30 – 11:30 a.m.
Seminar on Experiential Law Teaching with Dorothy Landsberg
11:30 – 12:00 p.m.
Reflection
12:00 – 1:30 p.m.
Lunch with Chinese Law Students
3
NOVEMBER 3 – WEDNESDAY
10:00 – 10:30 a.m.
Civil Procedure Introduction with Mike Vitiello
10:30 – 11:45 a.m.
Civil Procedure Class with Mike Vitiello
12:00 – 1:15 p.m.
Lunch with visiting Asia Foundation Delegation
1:30 – 3:30 p.m.
Trial Advocacy Class with Jay Leach
3:30 – 5:00 p.m.
Legal Process Class with Hether Macfarlane
5:00 – 5:30 p.m.
Reflection
NOVEMBER 4 – THURSDAY
10:00 – 12:00 p.m.
Discussion with Frank Bloch
12:00 – 1:00 p.m.
Lunch with Jeff Proske, Introduction of Global Lawyering Skills II Class
1:00 – 2:00 p.m.
Global Lawyering Skills II Class with Jeff Proske
3:00 – 3:30 p.m.
Discussion on Global Lawyering Skills II Class with Jeff Proske
3:30 – 4:00 p.m.
Criminal Procedure introduction with Linda Carter
4:15 – 5:15 p.m.
Criminal Procedure Class with Linda Carter
5:15 – 5:45 p.m.
Reflection
NOVEMBER 5 – FRIDAY
8:30 – 9:00 a.m.
Negotiation & Settlements introduction with Michael Colatrella
9:00 – 12:00 p.m.
Negotiation & Settlements Class with Michael Colatrella
12:00 – 1:30 p.m.
Negotiation & Settlements discussion over lunch with Michael Colatrella
2:00 – 3:00 p.m.
Organization and supervision of externships by Colleen Truden
3:30 – 5:30 p.m.
Use of technology in legal education by Monica Sharum & Fred Galves
5:30 – 6:00 p.m.
Reflection
NOVEMBER 6 – SATURDAY
8:30 – 10:30 a.m.
Observe trial process in Trial Advocacy class
Courtroom
4
NOVEMBER 8 – MONDAY
8:00 a.m.
Stanford University - Visit clinics, Meeting with Clinic Directors/Students,
Briefing with Pamela Phan
NOVEMBER 9 – TUESDAY
9:00 – 10:30 a.m.
Visit of the Federal Courthouse and observe trial proceedings
10:30-11:00 a.m.
Meet with Judge England in Chamber and discuss observations
12:00 – 2:00 p.m.
Lunch with presentation by Liu Jianming
2:00 – 4:00 p.m.
Reflection and final evaluations with Brian Landsberg
4:30 – 5:00 p.m.
Preview of clinical seminar by Melissa Brown
5:00 – 6:00 p.m.
Elder Law & Health Seminar/Clinic with Melissa Brown
NOVEMBER 10 – WEDNESDAY
Departure
5
Professor Jay Leach
Professor Cary Bricker
TRIAL ADVOCACY
Introduction to Trial Advocacy exercises in
Week of November 1 (jury selection) and Trials starting November 5
The class’s exercises in the Week of November 1 and the trials that begin on November 5 are
based on two different trial cases – these are simulated cases, but they are based on real
background facts.
To understand the focus of the jury-selection exercises you will see, it will help first to read the
following outlines of the two cases.
Flinders Aluminum v. Mismo Insurance – civil case
In this breach of contract case the plaintiff, Flinders Aluminum Co., sues Mismo Insurance Co.
for refusing to pay a $1.7 million insurance claim after the Flinders manufacturing building burnt
down. Flinders contends (and Mismo does not dispute) that all premiums were up to date and
that if the fire was accidental, Mismo owes Flinders the face value of the insurance policy, $1.7
million. Mismo, however, raised an affirmative defense, claiming that Flinders, through its
owner, Arthur Jackson, and his agents intentionally burned down the plant, committing arson.
If Mismo can prove by a preponderance of the evidence that Jackson burned down his own
building, the insurance policy is void.
Because Mismo has the burden of proof in this case, it will present its evidence first. Its proof
consists of witnesses and documents establishing that Flinders suffered huge financial losses in
the two years preceding the fire ($500,000 in 2007 and another $500,000 in 2008. Records
show that Jackson also had a $400,000 bank loan due a few weeks (after the fire) and had been
unsuccessful in his efforts to refinance this loan. A witness will also testify that she overheard
Jackson’s newly hired assistant say she knew George Avery, “a torch” who could “light up
Flinders’s business.” Jackson hired Avery and two months later the plant burned down; Avery
died in the fire.
Flinders will present evidence that the fire was accidental and that Mr. Jackson loved the
company, which he had built from the ground up. It will try to convince the jury that Jackson
would never destroy the business he had put so much energy, time and capital into. Jackson will
testify that his goal was to redirect his business from aluminum siding for homes to aluminum
parts for automobiles. He will insist that George Avery was a legitimate tool-and-die designer
brought in to breathe new life into the business, not to destroy it by fire.
Both the plaintiff and defense will call expert witnesses. For the defense Fire Marshall Olsen will
opine that this fire, like at least one other where George Avery had been employed, was the
product of arson.
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Plaintiff will call Donald Pincus, also a fire expert, who will conclude that technically the fire
must be deemed an accident. He will state that in his professional opinion, no fire can be
determined to be the result of arson unless and until all accidental causes have been ruled out.
In the Flinders case, he concludes that it is impossible to rule out all accidental causes.
The jury will be required to decide whether Mismo Insurance has proved by more than 50%
(“preponderance of the evidence”) that the fire was the result of arson.
State v Donaldson – criminal case
Donaldson Stephen Donaldson is charged with Murder in the Second Degree. The prosecution
alleges that Donaldson knowingly, intentionally, and willfully killed his six- month-old stepdaughter Cara.
Donaldson was 24 at the time he married and became step-father to three girls, one six, one
four, and Cara, six months old. At the time Cara died, Mr. Donaldson was enrolled in the
military, but at home awaiting departure for his first posting to S. Korea.
The day Cara died Donaldson was her care-taker. He was alone with her in the home (which he
shared with the girl’s mother Theresa and her three daughters) from 7:30 a.m. until 12:30 in the
afternoon, when he called a friend to come help because, he said, “the baby wasn’t breathing.”
When Cara arrived at the hospital, she was pronounced dead, having suffered two head injuries
that caused a subdural hematoma.
The prosecution’s theory is that Donaldson beat the baby during the day. Theresa reports that
the night before her death, Cara had no marks on her body. At the hospital the next day, the
Emergency Room doctor noted bruises on her body, cuts on her lip and nose, and the two fatal
head injuries. The prosecution will also call witnesses to testify that Donaldson gave
inconsistent statements about what had happened to Cara while she was under his care,
ranging from “she was asleep all morning” to “she must have fallen out of the crib” to “she was
awake and playing during the morning.” The prosecution will seek to establish that the baby’s
injuries, taken with Donaldson’s inconsistent statements, prove he murdered her.
The defense will offer proof Donaldson loved Cara like his own daughter, that no witness will
claim he ever raised a voice or hit her, and that on the day she died he did everything he could
to save her. They will also present other ways that she could have received the fatal head
injuries, including episodes where her biological father threw her into the air several times the
day before she died, and her two sisters stood on chairs and fed her pudding in her lightweight
highchair, beneath which were hardwood floors that could have caused head injury if she had
fallen out.
Both sides will call medical experts in support of their claims: the prosecution’s doctor says the
injuries likely occurred within six hours of death, while the defense expert says the injuries could
have occurred as long as 24 to 36 hours prior to death.
The jury will be required to decide whether Donaldson’s guilt has been proved “beyond a
reasonable doubt.”
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Jury selection exercises (“voir dire”)
In the class exercises in Trial Advocacy November 1-4, the students will be practicing how to
select a jury in a criminal or civil trial. After each student performs a brief (3-4 minute)
examination of the prospective jurors (who are played by classmates), the faculty member will
offer suggestions on how to improve the skill.
In the United States almost all criminal trials and many civil trials are decided by citizen jurors.
In jury selection, lawyers for both sides ask panels of citizens questions about their backgrounds
and their views on issues that may come up in the case. In theory, the goal of jury selection is to
maximize the chances that all members of a sitting panel can be fair and impartial: in other
words, the lawyers during voir dire try to discern whether prospective jurors have biases or
beliefs that may make them approach the case with preconceived ideas or closed minds.
Below are the most important skills we teach the students to use in this phase of trial:
1) Ask open, nonleading questions.
2) Make eye contact with each member of the panel.
3) Use simple, conversational language and style.
4) Ask questions about difficult areas. Thus, for example, if the case involves a claim that
the accused has a prior criminal record, try to find out if jurors can set that fact aside as
the Federal Rules of Evidence may require, or whether it will influence how they decide
the case.
5) Listen to the jurors’ answers and build off those answers to form your next open
question.
6) Follow up on answers if you need more information to understand the prospective
juror’s position on a given issue.
7) Ask some questions to the entire panel, some to individual members.
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CLINICAL METHODOLOGY
November 1, 2010
ClinicalCary
Methodology
• Professor
Bricker
– Federal Defender Clinic
– Trial Advocacy
– Advanced Trial Advocacy
• Professor Dorothy Landsberg
– Mediation Clinic
– Elder Law & Health Clinic
– Interim Clinical Director
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CLINICAL METHODOLOGY
• Description of Legal Clinics at Pacific McGeorge School of Law
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Federal Defender Clinic [hybrid clinic]
Elder Law & Health Clinic [on-campus clinic]
Victims of Crime Clinic [on-campus clinic]
Administrative Adjudication Clinic
Appellate Advocacy Clinic
Bankruptcy Clinic
Immigration Law Clinic
Mediation Clinic
Parole Representation Clinic
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CLINICAL METHODOLOGY
• Goals of Legal Clinics
• How We Teach
– Seminar
– Rounds
– Supervision
• “Certified Law Students” [State Bar of California]
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CLINICAL METHODOLOGY
Best Practices for Legal Education: A Vision and a
Roadmap, by Roy Stuckey and others
•
•
•
•
•
This publication sets forth the basic standards for legal education in the
United States.
This guide is a valuable resource for clinical methodology.
Chapter Five sets forth the best practices for clinical courses.
A copy of this publication can be downloaded on the following website:
http://law.sc.edu/faculty/stuckey/best_practices/.
Some chapters have been translated in Chinese and can be accessed by
visiting the following Pacific McGeorge website:
http://www.mcgeorge.edu/Experiential_Education_in_China/Workshop_Trai
ning_Materials.htm.
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CLINICAL METHODOLOGY
Best Practices for Clinical Courses
•
•
•
•
Achieve clearly articulated educational goals
Model of law office management
Malpractice insurance
Approve student work in advance and observe or
record student performance
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CLINICAL METHODOLOGY
Best Practices for Clinical Courses (cont.)
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Balance student autonomy with client protection
Classroom component
Adequate facilities, equipment and staffing
Respond to the legal needs of the community
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CLINICAL METHODOLOGY
Seminar in the Federal Defender Clinic
– Initial Appearance by students in Federal Court seeking
Appointment as Legal Representatives
– Reliability of Post-Arrest Confessions
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CLINICAL METHODOLOGY
Supervision in Elder Law & Health Clinic
Five essential stages of clinical work
– Student plans for activity
– Student and professor hold planning conference
– Student conducts activity (for example: client interview,
hearing)
– Student self-reflects on the activity
– Student and professor hold feedback session
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CLINICAL METHODOLOGY
Supervision in Elder Law & Health Clinic
Feedback session requires data about the activity
Methods of obtaining data
– Professor is present at the activity
– Activity is videotaped
– Shortly after the activity, student prepares a summary memo
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CLINICAL METHODOLOGY
Supervision in Elder Law & Health Clinic
Role play of preconference in professor’s office
before student conducts witness interview
Supervisory choices made by professor
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CLINICAL METHODOLOGY
Conclusion and Questions
Professor Bricker [email protected]
Professor Landsberg [email protected]
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Pacific McGeorge Legal Clinics
What better way to learn than by doing? Through a variety of legal clinics, our students enrich
themselves both academically and personally by helping the community with a variety of legal
challenges. Many clients who seek assistance from our legal clinics are unable to afford
representation from private attorneys, and this innovative program provides students a learning
environment that promotes real-world education and instills the value of service.
In a faculty-supervised, law office setting, students strengthen the connection between theory and
practice, learn practical lawyering skills, learn how to represent clients, and – importantly –
begin to develop their professional identity as a future attorney.
Citizenship Fair
In November 2009, Pacific McGeorge held its inaugural Citizenship Fair under the leadership of
Clinical Supervising Attorney Blake Nordahl, Professor Raquel Aldana and clinical students.
Approximately 290 community members received the advice and support they needed to apply
for U.S. citizenship without charge. Nearly 100 students from McGeorge, UC Davis and Pacific
helped individuals complete naturalization petitions, which were then reviewed by experienced
immigration attorneys. The day began with an introduction in Spanish by Associate Dean Julie
Davies followed by remarks from Senate President pro Tempore Darrell Steinberg and
Assemblymember David Jones.
Elder Law and Health Clinic Victory
Pacific McGeorge Elder Law Clinic students scored a significant victory earlier last year when
an administrative law judge ruled that their client was not financially responsible for a $150,000
bill incurred after being improperly discharged from a hospital. Anne Caruana, ’11, Ryan
Cronin-Prather, ’11, and Sarah Chesteen, ’11, along with Elder Law Clinic team leader Cheryl
Robertson, ’10 represented an 83-year-old woman in the case.
“Our successful appeal involved an enormous amount of work,” said Professor Melissa Brown,
the clinic’s supervising attorney. “As the Elder Law Clinic continues to attract more students, the
breadth and quality of our cases grow as well. Clinical work such as this is the perfect experience
for our students, combining counseling, advocacy, ethics and professional growth. Not to
mention, a very grateful client who is now being cared for in her own home.”
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Administrative Adjudication Clinic
(Offered Fall Semester 2010)
This clinic is a comprehensive overview of administrative process through classes and simulated
hearings. You are assigned to an administrative agency to participate as an actual decisionmaker. Contact Glenn Fait 916.739.7049 or [email protected].
Appellate Advocacy Clinic
(Offered Spring Semester 2011)
You will represent indigent parents in appellate dependency proceedings before the California
Court of Appeal under the joint supervision of a Central California Appellate Project staff
attorney and a McGeorge faculty member. You will hone your skills in all aspects of appellate
advocacy, including client counseling, appellate record review, legal research, brief writing, and
oral argument. Completion of GLS II plus concurrent or prior enrollment in Juvenile Law are
required. Contact Jennifer Gibson 916.739.7166 or [email protected].
Bankruptcy Clinic
(Offered both Fall & Spring Semesters)
This clinic provides a practical skills experience in insolvency issues and proceedings. You will
interview and counsel clients, assist clients in all aspects of case assessment, negotiation and
settlement, and in representation of debtors and creditors in bankruptcy proceedings in the US
Bankruptcy Court for the Eastern District of California. Concurrent or prior enrollment in
Bankruptcy course is required. Contact Warren A. Jones 916.340.6107 or [email protected].
Elder Law and Health Clinic
(Offered both Fall & Spring Semesters)
You will assist people aged 60 and up with a variety of issues unique to the aging population.
You will provide legal advice and representation in a wide variety of issues including nursing
home residents’ rights, conservatorship and alternatives, family law, social security,
Medicare/MediCal, simple estate planning tools, and elder abuse. You will develop marketable
skills and become acquainted with a wide range of legal practitioners. Concurrent or prior
enrollment in Elder Law and Social Policy course or equivalent education/experience required.
Contact Melissa Brown 916.739.7378 or [email protected] or Dorothy Landsberg
916.340.6145 or [email protected].
Federal Defender Clinic
(Yearlong Clinic 2010–11)
You will represent indigent defendants charged with misdemeanors before Federal Magistrate
Judges in the first semester, under the joint supervision of a Federal Defender and McGeorge
faculty. Students will hone their skills in client counseling, plea negotiation, case analysis, oral
and written advocacy and trial techniques. Students will conduct evidentiary hearings and many
will conduct full jury trials. Concurrent enrollment in Federal Pretrial/Trial Seminar is required.
Contact Cary Bricker 916.739.7236 or [email protected].
Immigration Law Clinic
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(Offered both Fall & Spring Semesters)
You will provide legal assistance to low-income clients on immigration matters and direct
representation in adjustment of status and naturalization matters, such as family petitions.
Students will handle specialized visas, such as U Visas and T Visas. Concurrent or prior
enrollment in Immigration and Nationality Law course is required. Contact Blake Nordahl
916.340.6109 or [email protected].
Mediation Clinic
(Yearlong Clinic 2010–11)
You will co-mediate section 1983 prisoner civil rights cases with a Federal Magistrate Judge.
You will learn both the theory and practice of mediation and will develop the skills necessary to
serve as mediators, including participation in mediation simulations. You will also learn section
1983 prisoner case law. Contact Dorothy Landsberg 916.340.6145 or [email protected] or
Mike Colatrella 916.739.7303 or [email protected].
Parole Representation Clinic
(Offered Spring Semester 2011)
You will represent California parolees in revocation hearings. You will have the opportunity to
represent adult and juvenile parolees in an administrative hearing. You will handle cases from
initial assignment through resolution at the hearing, including interviewing clients, developing
case strategy and advocating for your client at the parole hearing. Contact Mary Swanson
916.739.7090 or [email protected].
Victims of Crime Clinic
(Offered both Fall & Spring Semesters)
You will draft pleadings and represent crime victims in criminal proceedings in Superior Court
and before administrative tribunals. You will gain firsthand experience working with crime
victims and the professionals who serve them. Seminars will cover the constitutional and
statutory rights of crime victims and the difficulties inherent in exercising those rights. Contact
Kathleen Benton 916.739.7050 or [email protected].
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Seminar in Federal Defender Clinic
Professor Cary Bricker
• Reliability of Post-Arrest Confessions
• Motion to Suppress Confession
• CAM
• Simulation with Students
1. Preparation for Seminar
Each week in Seminar students discuss relevant issues in Federal Criminal Law
and conduct simulations of in-court and out-of-court proceedings. During week
20, for example, the discussion focuses on the reliability of post-arrest
“confessions.” In preparation students must complete the following assignments.
First, they must read articles discussing the reliability of post-arrest confessions
extracted by federal officers from defendants in custody.
Second, they must complete Advanced Case Analysis Memoranda (CAMs) for
one of their cases where federal agents interrogated a client. In these CAMs
students figure out the prosecution’s proof surrounding the taking of the
confession and outline out how to prepare for an evidentiary hearing where the
goal is to establish that the “confession” was obtained in violation of Federal law.
The components of this Advanced CAM include answers to the following questions:



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
Based on discovery, is there a viable motion to suppress postarrest statements?
What investigation does the lawyer need to do to prepare for the
motion to suppress statements?
Are there any witnesses she needs to contact?
Are there any exhibits she needs to collect?
Does the defense have any reciprocal discovery to provide to the
government?
23
Third, before class students are provided with a fictitious fact pattern in which
federal agents conducted an interrogation of a defendant, at the end of which the
defendant is alleged to have made incriminating statements?
2. Content of Seminar
In the actual seminar, students first discuss the issues outlined in their readings
and detailed in their CAMs. Selected students then conduct a mock crossexamination of the federal officer (played by a professor) in the fictitious fact
pattern. After completing the cross-examination, students make legal arguments
to the judge (played by a second professor) to support suppression of the
statement.
After each performance the professors suggest ways to examine the witness
and present the legal arguments more forcefully and persuasively.
3. Demonstration
In the following demonstration Cody Drabble, a graduate of last year’s Federal
Defender Clinic and Seminar, will conduct a mock cross-examination of
Professor Bricker acting as the federal officer who had interrogated Drabble’s
client post-arrest and claimed that the client had made incriminating statements.
Professor Bricker will then critique the performance as she would in the real
class.
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25
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27
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LL.M. Seminar in Experiential
Law Teaching
November 2, 2010
Supervision - Client Interviewing
Professor Dorothy Landsberg
Professor Liu Jianming
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SUPERVISION – CLIENT
INTERVIEWING
1. Description of Case Study involving
Elder Law Client
2. Description of SSI benefits
3. Introduction to Supervision
4. Pre-interview Supervisory Session
(videotape)
5. Discussion about Effectiveness of
Supervisory Session
6. Interview of Client (videotape)
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SUPERVISION – CLIENT
INTERVIEWING
•
•
•
•
Explanation of Six-step Feedback Model
Feedback Session using Model (videotape)
Discussion about Effectiveness of
Feedback Session
Conclusion and Questions
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Civil Procedure
Distinguished Professor and Scholar Michael Vitiello
The class is currently studying what claims and parties may be joined into one
case. Depending on time, the class may consider the following:
1. Claim Joinder by Plaintiffs
a.
Procedural Aspects.
This will include discussion of a rule [like a statute], Rule 18(a) of the Federal
Rules of Civil Procedure. The rule allows the plaintiff to join all claims she
has against the defendant. However, Professor Vitiello will explore what
considerations would lead a plaintiff to decide either to join lots of claims or
few.
b.
Jurisdictional aspects.
Under the U.S. Constitution a federal court may only hear a case if it presents
a federal question [federal question jurisdiction] or if the parties are from
different states [diversity jurisdiction]. Professor Vitiello will spend time
discussing a case, United Mine Workers v. Gibbs, in which the plaintiffs relied
on federal question jurisdiction to raise both a federal question and a related
claim under state law, that was not a federal question. The case arose out of a
violent strike, which resulted in the plaintiff losing his job and also losing a
contract to transport coal. He sued the union for damages. The trial court
ruled against Gibbs on his federal claim but ruled for him on his state law
claim. If there had been no federal claim the court would have lacked
jurisdiction over the case. The Supreme Court ruled that the state law claim
was “pendent” to the federal claim and that the federal court therefore had
jurisdiction over it. However, it also described situations when such pendent
jurisdiction would not be allowed. Congress now calls this kind of
jurisdiction “supplemental jurisdiction.” Professor Vitiello will discuss with
the class what the elements of such jurisdiction are, as well as some of the
problems that this type of jurisdiction raise.
2. Permissive Party Joinder by Plaintiffs
a.
Procedural aspects.
Federal Rule of Civil Procedure 20(a)(2) defines whom a plaintiff may join as
a defendant. Again, it gives the plaintiff choices. The class has been assigned
to read a state court case, Schwartz v. Swan, in which plaintiffs alleged that
they were in two automobile accidents, ten days apart. The first accident, they
alleged, was caused by negligent driving by two other drivers. The plaintiffs
joined as defendants both the drivers in the first accident and the driver in the
second accident. The trial court forced them to sever the two claims, but the
Illinois appellate court reversed and said the joinder of the claims and
defendants was proper under Illinois law. Professor Vitiello will discuss
whether the same result would occur under federal law. This will lead to
discussion of both policy and litigation strategy.
b.
Jurisdictional aspects.
33
The class will discuss what is known as “pendent party jurisdiction,” which
has generally not been allowed, primarily because the Supreme Court does not
construe statutes as calling for it. Professor Vitiello will also discuss whether
a statute enacted by Congress in 1990 would allow “supplemental
jurisdiction” over such parties.
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Pacific McGeorge School of Law ● Fall Semester, 2010
LL.M. Legal Process ● Professor Macfarlane
SYLLABUS
Class Hours:
Monday & Wednesday, 3:30-5:00, Classroom S-2
Friday, August 20 & 27, & Sept. 3 only, 10:00 - 11:30, Classroom H
Office:
182 Faculty Office Building. Telephone 739-7215
E-mail:
[email protected]
Office Hours: Wed. 5:15-6:15; Thurs. 5:15-6:15; Fri. 1:00-4:00. Other times by appointment
Class Web Page:
TWEN site for “LL.M. Legal Process
Writing Specialist:
Lexis Allen, 2964 33rd Street, Room 103A (gray house with white trim).
(916) 455-4800, ext. 231 or [email protected]. Sign up for office
hours on TWEN site for “Writing Specialist” using sign-up sheets for “Fall
Semester 2010.”
TEXTS
Deborah B. McGregor and Cynthia M. Adams, The International Lawyer’s Guide to Legal Analysis
and Communication in the United States (Aspen Publishers 2008) (“The Guide”)
Hether C. Macfarlane and Suzanne E. Rowe, California Legal Research (Carolina Academic Press
2008) (“CLR”)
Association of Legal Writing Directors & Darby Dickerson, ALWD Citation Manual (4th ed. Aspen
Publishers 2010) (“ALWD”)
ADDITIONAL INFORMATION
1.
This class will meet three times a week (Monday, Wednesday, and Friday) for the first three
weeks of the semester so we can cover the orientation to U.S. legal education, the U.S. legal
system, and the introduction to common law analysis more quickly. Each of these topics
will help with your other courses. For the final three weeks of the semester, we will meet
only once a week on Monday (Nov. 8, 15, and 22).
35
2.
American law school classes involve less lecture than you are probably used to. I will call on
you individually to answer questions. I will ask questions of the class as a whole and expect
you to volunteer to answer the question. I also expect you to ask me questions whenever
you are confused or want further information. If you don’t understand something, I can
almost guarantee that you are not the only person who doesn’t understand, so please help
your fellow students by raising your hand and asking the question.
3.
I have set up a TWEN site for the class so we can all communicate with each other. You
will find it listed as “LL.M. Legal Process, Fall 2010." I will use this site to post materials
and inform the class of any changes that occur in the syllabus. The TWEN site allows
everyone in the class to ask questions about assignments; when I answer a question,
everyone will be able to see my answer. I also encourage everyone to answer questions
posed by other students in the class, just as colleagues would do in a law office.
4.
Because I will use the TWEN site to post any changes to the syllabus, you should check the
“Syllabus” forum before each class to see if there have been any last minute changes.
5.
Please check both TWEN and your email regularly – preferably daily – to see if I have
posted any changes or sent other messages. Once I post something on TWEN or send an
email to the class using the email address with which you registered with TWEN, I will
assume that everyone has seen that posting or message.
6.
The ABA requires that you attend all classes and that I keep a record of your attendance.
Absences for illness or emergency are excused within reason. If you are repeatedly absent,
however, I will discuss your absences with the International Programs Office. In addition,
your final course grade may be lowered to reflect excessive absences.
7.
Class will start promptly each day at 3:30 or 11:00, depending on the day. I expect everyone
to be in class on time.
8.
Laptops can be useful for this course. However, laptops should be used during class for
class purposes only. Surfing the Internet, conducting email or instant messaging
correspondence, checking Facebook, and playing games on your computer distract other
students, are a waste of time for which you are paying money, and indicate a lack of respect
for the time your fellow students and I put into preparing for this class. I expect you not to
engage in these and similar uses of your laptop during class.
COURSE LEARNING OBJECTIVES
$
Understand the state and federal court structures and jurisdictions of the United States. You
will be able to know which law is applicable to a problem and be able to choose among
possible sources of the law to find those that are the most appropriate for any given
36
problem.
$
Understand common law legal analysis approaches. You will be able to analyze a given
problem using precedent and enacted law and applying analogical, rule-based, policy-based,
and narrative reasoning as appropriate.
$
Understand how to locate appropriate legal authority. You will be able to distinguish
between mandatory and persuasive authority and between primary and secondary authority.
You will be able to find appropriate authority using both print and electronic sources.
$
Understand the structure and purpose of a written predictive memorandum of law. You will
be able to apply the research and analytical skills covered in the course to a client-based
problem and to write your analysis within the conventions of a U.S. predictive memorandum
of law.
BASIS FOR FINAL GRADE
Assignment
Percent of Final Grade
Predictive Memorandum of Law
50%
Research Examination
50%
Anonymous Grading: I will require ungraded assignments throughout the semester. You will hand
these in using your name. All graded assignments – in our case the predictive memo and the
research examination – will be graded using anonymous examination numbers, as is the standard
practice at Pacific McGeorge. You should receive your anonymous number from the Registrar
sometime in the first month or so of the semester. I will not know which student wrote which
memo or examination answer until after I have assigned all grades. Pacific McGeorge faculty are not
permitted to change grades once we know the identity of the student who received the grade.
Grades of “Incomplete”: If the final grade based on the memorandum and the research
examination are too low for me to be able to award a “passing” grade for the course, I will have the
Registrar enter a grade of “Incomplete” on the transcript of the student with the appropriate
anonymous number. Once I know who received the “Incomplete,” I will get in touch with you to
make arrangements for either further rewrites of the memo or administration of another research
examination or both. The final rewrite and/or the substitute research examination must be finished
by the end of the Spring 2011 semester.
37
COURT VISIT
We will go as a class to sit in on a trial in either the Superior Court (state trial court) or the
U.S. District Court for the Eastern District of California (federal court) one day. Because trials are
not scheduled far in advance, I don’t yet know what day we will go. Therefore, I have left a
November class date open. Once we go to court, I will revise the syllabus by moving every
assignment one class later in the semester and fill in that open date.
38
CLASS ASSIGNMENTS
CLASS 1, August 16: The U.S. System of Government
□
Read The Guide, Chapter 1, pp. 3-13
□
Read the errata sheet for Chapter 1 of The Guide (available on TWEN in “Course
Materials” or at the Faculty Support Office)
CLASS 2, August 18: The U.S. Legal Education System: Studying the Law
and Briefing Cases
□
Read Orin S. Kerr, How to Read a Legal Opinion, 11 Green Bag 2d 51 (2007) (handed out in
Class 1 or available on TWEN)
□
Read The Guide, Chapter 4, pp. 15-27
□
Read the errata sheet for Chapter 4 of The Guide (handed out in Class 1 and available on
TWEN in Course Materials)
CLASS 3, August 20: The Anatomy of the Civil Litigation Process
□
Read The Guide, Chapter 3, pp. 29-43
□
Brief Messa v. Sullivan (handout from Class 2). Please type your brief. Hand in your brief
at the beginning of the class.
CLASS 4, August 23: The Common Law in the United States
□
Read The Guide, Chapter 2, pp. 15-27. Prepare Exercise 2-A for class discussion. Read
through Exercises 2-B - 2-F to make sure you understand the hypothetical situations.
39
CLASS 5, August 25: The Common Law in the United States (cont.)
□
No additional reading.
□
Prepare to present to the class the arguments for your assigned exercise in Chapter 2
CLASS 6, August 27: The Common Law in the United States (cont.)
□
No additional reading
□
Prepare to present to the class the arguments for your assigned exercise in Chapter 2
CLASS 7, August 30: The Legal Writing Process; The U.S. Concept of
Plagiarism and the Proper Attribution to Authority
□
Read The Guide, Chapters 5 & 6, pp. 101-111.
CLASS 8, September 1: Writing an Objective Analysis Discussion of a FactBased Issue Based on One Issue and One Case
□
Read The Guide, Chapter 7, pp. 101-111
□
Brief: Appendix D, Mats Transport v. ABC Corporation, pp. 385-386.
□
Read & brief Lucy v. Zehmer (handed out in Class 7 and posted on TWEN)
40
CLASS 9, September 3: Writing an Objective Analysis Discussion of a FactBased Issue Based on One Issue and One Case
□
Read The Guide, Chapter 7, pp. 111-127
□
Prepare to hand in Exercise 7-A (using Jones facts and Lucy v. Zehmer)
MONDAY, September 6: NO CLASS – Labor Day Holiday
CLASS 10, September 8: Exam-Taking Techniques
□
Read The Guide, Chapter 22, pp. 353-374
□
Prepare to hand in Exercises 7-B & 7-C, Parts 1 & 2 (using Jones facts and Lucy v.
Zehmer)
CLASS 11, September 13: Scholarly Writing
□
Read Handout on scholarly writing provided in Class 10 and on the TWEN site.
CLASS 12, September 15: Citing to Authority
□
Read The Guide, Chapter 15, pp. 231 - 251.
41
CLASS 13, September 20: Writing a Discussion for a Fact-Based Issue;
Using Policy to Support a Legal Analysis; Analyzing the Law Using Multiple
Cases in Analyzing a Single Issue
□
Read The Guide, Chapters 8 & 9, pp. 133 -155
□
Prepare to discuss in class Exercise 15-B
CLASS 14, September 22: Taking the Objective Analysis to a Higher Level;
Synthesizing a Single Rule from Multiple Cases
□
Read The Guide, Chapter 10, pp. 157 - 166
CLASS 15, September 27: Beyond the Single CREAC; Structuring an
Analysis of Multiple Fact-Based Issues
□
Read The Guide, Chapter 11, pp. 167 - 177
□
Read handout for Exercise 11-A
□
Prepare to discuss in class Exercise 11-A.
□
Prepare to hand in Exercises 7-D, 7-E, and 7-F (using Jones facts and Lucy v. Zehmer)
CLASS 16, September 29: Synthesizing A Single Rule from Multiple Cases,
Exercise 10-A
□
Prepare to discuss in class Exercise 10-A, pp. 162-165. Prepare to identify and distinguish
between the rules the court applied in the case and the rule that the court created in the case.
42
CLASS 17, October 4: Analyzing the Law Using Multiple Cases in Analyzing
Multiple Issues
□
Read The Guide, Chapter 12, pp.179 - 191
□
Prepare to discuss in class Exercises 12-A & 12-B
□
Prepare to hand in Exercise 7-G
CLASS 18, October 6: An Overview of Statutory Interpretation in the U.S.
Courts
□
Read The Guide, Chapter 13, pp. 193 - 208
□
Prepare to discuss Exercise 13-A in class
CLASS 19, October 11: Introduction to an Objective Legal Analysis of a LawBased Issue
□
Read The Guide, Chapter 14, pp. 209 - 230
CLASS 20, October 13: Writing Letters
□
Read The Guide, Chapter 16, pp. 255 - 276
CLASS 21, October 18: The Research Process and Legal Analysis; Legal
Research Techniques
□
Read California Legal Research, Chapters 1 & 2, pp. 3 - 27
43
CLASS 22, October 20: Judicial Opinions
□
Read California Legal Research, Chapter 3, pp. 29 - 59
CLASS 23, October 25: Constitutions; Statutes
□
Read California Legal Research, Chapters 4 & 5, pp. 61 - 85
CLASS 24, October 27: Administrative Law; Updating Legal Authority
□
Read California Legal Research, Chapters 7 & 8, pp. 113 - 153
CLASS 25, November 1: Secondary Sources and Practice Aids; Planning a
Research Strategy and Organizing Research Results
□
Read California Legal Research, Chapters 9 & 10, pp. 155 - 188
CLASS 26, November 3: Non-Fee Internet Legal Research
□
□
No additional reading
Class discussion of non-fee Internet legal research
CLASS 27, November 8
□
Open until the court visit is scheduled
44
Objective Memorandum of Law
Due Friday, Nov. 12 11:59 p.m. via TWEN
CLASS 28, November 15: Review Session for Research Examination
□
Review session for the research examination
November 22
□
Research Examination. Time and classroom to be determined. You will have 2 hours and
15 minutes to complete the exam.
45
The Law Student Guide to
Free Legal Research
On the Internet
So you’ve decided to do some legal research...
First off, you should know that this guide won’t make legal research
fun or fast or easy. Legal research is boring and tedious and nothing
can change that. The best you can hope for is to plug along long
enough that you eventually can get an unfortunate law student
such as yourself to do your research for you.
What this guide can do is make legal research cheap. Free, as a
matter of fact.
Good Legal Research Starts with Free
Whatever noble aspirations led you to law school, becoming a lawyer means that you
eventually will be running a business too. At the end of the day you still have to get
paid and what you get paid is determined by the costs you incur. Fortunately, there
are now accurate and reliable options for accessing law for free via the Internet.
You won’t get pens or mugs from these guys. The only thing they give away is legal
information.
The Free Law Coalition:
Legal Information Institute - http://www.law.cornell.edu/
The Legal Information Institute is a non-profit organization housed at the Cornell Law
School. This website hosts a collection of federal case, statutory and regulatory law as
well as provides links to government sources of state laws. Additionally, it provides Wex,
a community edited legal dictionary and encyclopedia.
Justia - http://www.justia.com/
Justia is a company that assists law firms with Internet marketing. They also have a
strong public service and pro bono mission and provide an extensive collection of
federal law, as well as links to state law. Justia also has links to useful materials such as
forms and subject specific resources.
46
The Legal Research Process
Legal research is not exciting or glamorous, but it makes up the backbone of a legal
practice. Here is a flow chart illustrating the basic process.
Federal Law Resources
U.S. CODE - What is it: The U.S. Code is all of the laws that have been passed by the US
Congress that are currently in force. They are organized topically in sections called
“titles.”
Top Pick: The best and easiest to navigate version of the US Code can be found at the
Legal Information Institute. Their copy allows for browsing or searching (by title and in
whole). There is also a Popular Name Table if you’re not sure of an exact citation. (PROTIP: Wikipedia or even just googling the popular name is also good for determining the correct cite.) LII also provides an RSS feed for each title to keep up with
updates.
Other options: Justia ; United States Government Printing Office
Updating: If you use the LII version of the US Code, there is a box on the right hand side
of the screen that links to updates for that section. Otherwise, you can check the U.S.
Code Classification Tables from the U.S. House of Representatives to check if your law
has been updated.
47
REGULATIONS - What are they?: Regulations are proposed by executive agencies such
as the Environmental Protection Agency (EPA) or Federal Drug Administration (FDA). A
more complete list of agencies can be found here. These agencies’ proposed rules
and regulation appear in the Federal Register, which is a daily publication of the federal government. After they are enacted, they are placed in the Code of Federal
Regulations. Like the US Code, this is organized topically by “titles.”
Top Pick: The Government Printing Office Code of Federal Regulations allows for quick
browsing or searching from its initial page. (PROTIP: When possible, it will be less confusing to browse and drill down to get to the part that you want or search individual
titles only.) The CFR is updated annually – one fourth of the volumes are done every
quarter. When browsing, the GPO version allows you to easily see when each volume
of the CFR was last updated. That information is important when it comes time to update your law.
Other Options: Legal Information Institute ; Justia
Updating: Updating CFR sections, frankly, sucks. First you need to ascertain when the
CFR section you’re looking at was published. The revision dates chart on GPO is very
handy for this. Then you need to check the List of Sections Affected (LSA) for every
month in between that date and the present. Finally, you need to check the Current
List of CFR Parts Affected to catch anything that may have changed between the last
LSA and now.
CASE LAW - What is it: Case law is the law that appears primarily in appellate
cases. There can be many issues decided in a single case and it’s sometimes hard to
determine the difference between the law created by the case and judicial dicta.
Top Pick: Justia has an easy to navigate U.S. Supreme and Appellate Court search
pages on its website. You can also browse by year or circuit.
Other Options: Google Scholar Advanced Search ; Legal Information Institute
Updating: There is only one truly free citator available at the present time. When using
Google Scholar, you can see the cases that cite your case as well as snippets showing
how it was cited. Unfortunately, it does not provide quick visual clues to see how your
case has been treated by latter case law.
State Law Resources
The amount and quality of state law available for free on the Internet varies by jurisdiction. The following are pages or sites that will provide links to the state resources.
Justia ; Legal Information Institute
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60
UNIVERSITY OF THE PACIFIC
McGEORGE SCHOOL OF LAW
GLOBAL LAWYERING SKILLS II
FALL SEMESTER 2010
SECOND GRADED ASSIGNMENTS
Page
SECOND GRADED WRITTEN ASSIGNMENT .........................................................................
Due by 5:00 p.m., Saturday, November 20, 2010
Introduction............................................................................................................................
Your Assignment ...................................................................................................................
The Issues ..............................................................................................................................
The Law .................................................................................................................................
Factual Analysis.....................................................................................................................
Suggestions ............................................................................................................................
Formal Requirements.............................................................................................................
Amendments to Local Rules ..................................................................................................
SECOND GRADED ORAL ARGUMENT ..................................................................................
To be performed in Class, weeks of November 1, 8, and 15, 2010
CASE FILE (separately paginated following p. ):
Contents ......................................................................................................................
Case File Page
9. Answer of Defendants ULC and Harriett Yun (September 6, 2010)
10. Deposition of Ernestine Petrillo (September 7, 2010)
11. Deposition of Linwood Rooks (September 8, 2010) .......................................................
12. Deposition of Heather Sedalia Burr (September 10, 2010) .............................................
13. Deposition of Leland Lamprey North (September 13, 2010) ..........................................
14. Deposition of Laurabelle Epperson (September 14, 2010) .............................................
15. Order re Plaintiff’s Motion to Compel (September 20, 2010).........................................
16. Default Judgment (October 4, 2010) ..............................................................................
17. Defendants’ Motion for Summary Judgment (October 15, 2010) ...................................
61
SECOND GRADED WRITTEN ASSIGNMENT
Due by 5:00 p.m., Saturday, November 20, 2010 1
Introduction
This handout contains the next case file segment, beginning after p. 6 with Case File
p.66. Since the case file is cumulative, the record in Petrillo v. Rooks now consists of:
•
pp. 1-19 in the In-Class CRAC Assignment,
•
pp. 20-65 in the First Graded Assignments handout, and
•
pp. 66-176 in this handout.
This new segment of the case file reveals the following developments. As required by
Fed. R. Civ. P. 12(a), the defendants ULC and Yun served an answer to the complaint
within 20 days of the service of summons and complaint. After the deposition of Rev.
Yun concluded, the parties were faced with a deadline for finishing discovery. See Case
File p. 22. While they waited for the court to rule on the motion to compel more
testimony from Rev. Yun, they took five more depositions of witnesses (including
Ernestine Petrillo, the plaintiff).
After the last deposition, Judge Drafter decided the pending motion concerning the
extension of the attorney-client privilege to communications between Rev. Yun and the
in-house counsel for ULC, Ms. Yoshizuka. Applying the functional equivalence test, the
court held that Ms. Yoshizuka, a Japanese gyoseishoshi, was the equivalent of an
American attorney in her role as counselor to the ULC. The communications between
Rev. Yun and Ms. Yoshizuka were therefore protected by the attorney-client privilege
and the motion to compel was denied.
On October 15, 2010 the defendants ULC and Yun moved for summary judgment.
Under Rule 56(c) of the Federal Rules of Civil Procedure, a summary judgment may be
entered—and a trial avoided—“if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, which
challenges the legal sufficiency of the claims set forth in the complaint, a defendant’s
Rule 56 motion for summary judgment disputes the existence of evidence to support
plaintiff’s claims.
The defendants’ motion for summary judgment is based on two distinct grounds. As to
both the negligent hiring and negligent supervision claims (Counts 5 and 6), the
1
This deadline will be strictly enforced as set forth in Course Rules: Grading and Deadlines and
Penalties for Late Papers, in Syllabus, pp. 4-5.
62
defendants contend that pursuit of this action would entail a constitutionally
impermissible degree of entanglement of the court with religious matters, as forbidden by
the First Amendment. In addition, as to Count 5 only, the defendants contend that there
simply is no evidence on which a finding of negligent hiring could be based.
Your Assignment
Your assignment is to write a Memorandum of Points and Authorities in Support of
[or in Opposition to] Defendants’ Motion for Summary Judgment. You will represent
the side of the litigation to which you were previously assigned. Your completed
memorandum must be filed electronically on TWEN before the deadline of 5:00 p.m.,
Saturday, November 20, 2010.
The Issues
Your memorandum should cover the two main issues raised by the motion: (1) whether
plaintiff’s action against the church and its senior pastor threatens to entangle the court in
religious matters so as to violate the Religion Clauses of the First Amendment, and (2)
whether the record contains any evidence to support plaintiff’s claim of negligent hiring.
The First Amendment issue may be further divided as follows: (a) whether the very
process of litigation and decision of plaintiff’s claim threatens unconstitutional
entanglement of the court in religious matters and, assuming a negative answer to that
question, (b) whether awarding the plaintiff any relief on the basis of those claims would
violate the Religion Clauses of the First Amendment.
The Law
This is an open research assignment. You must examine the Religion Clauses of the First
Amendment by means of your own research. Keep in mind throughout your research on
this federal constitutional issue, that the framework for this case is a summary judgment
motion.
The second issue raised by the motion for summary judgment does not involve the First
Amendment and calls upon you to research a state law issue: the elements of an action for
negligent hiring under applicable law and whether the evidence in this case could support
a plaintiff’s verdict on that claim in the light of those elements.
Factual Analysis
All the Case File materials in this and prior distributions remain useable and potentially
relevant to this assignment. The depositions on file are the primary sources of evidence
that you should examine. You should assume that all deposition testimony would be
admissible at trial. In other words, assume that there are no plausible objections under the
63
rules of evidence to any of the deposition testimony.
You will need to correlate the evidence with the material facts. The material facts are
derived from the substantive law and the pleadings in the case. In this case, the material
facts are those needed to answer following questions: (1) What does the substantive law
declare to be the elements of a cause of action for negligent hiring or negligent
supervision as pleaded by the plaintiff in this case? (2) What are the substantive elements
of a defense based on the Religion Clauses of the First Amendment as pleaded in his
case? Make a list of the material facts. Then index and outline the evidence with
reference to each material fact on your left. Once you have lined up all the evidence with
your list of material facts, your next task is to determine whether there is a “genuine
issue” as to the existence of each material fact. Finally, you must ask whether the
undisputed facts—the facts as to which there is no “genuine issue”—establish that the
defendants are entitled to a judgment as a matter of law.
Analyzing the facts is not a mechanical exercise. There are many ways of articulating the
material facts and many ways to look at the evidence. Your task is to create versions of
the materials facts and evidence that are convincing and will serve as a basis for
advocating your client’s cause.
Suggestions
Review and apply the suggestions about time management at pp. 5-6 of the First Graded
Assignments handout. If you turned in your First Graded Written Assignment late—or
came close—or if you missed classes in order to complete that assignment on time, you
need to improve your time management skills. Poor time management can get you in
serious trouble in the practice of law. Good habits need to start now.
Formal Requirements
You must submit your memorandum electronically on TWEN by 5:00 p.m. on Saturday,
November 20, 2010. 1 The length of your memorandum may not exceed twelve (12)
pages. Your memorandum must comply with the Local Rules of the United States District
Court for the Southern District of Colorado, which are contained in the First Graded
Written Assignment handout. Your memorandum should also follow the general
Instructions for the First Graded Written assignment at pp. 2-5 of the First Graded
Assignments handout, except:
The title of your memorandum is set forth at p. 3, supra.
The length limit and filing deadline are as set forth above.
1
Late papers will incur substantial penalties, up to and including an F in the course. See
Syllabus, pp. 4-5.
64
SECOND GRADED ORAL ARGUMENT
To be performed in Class, weeks of November 1, 8, and 15, 2010
You are to present an oral argument on the defendants’ motion for summary judgment,
arguing the side to which you are assigned. Counsel for the defendants will argue in
favor of the motion, while counsel for the plaintiff will argue against the motion.
Each side will have twelve minutes. Defendants may reserve up to four minutes of this
time for rebuttal. The order of argument will be: defendants’ opening argument,
plaintiff’s argument, and defendants’ rebuttal argument.
Your professor will notify you of the schedule for arguments.
The evaluation sheet for oral arguments is printed at p. 23-24 of the First Graded
Assignments handout.
65
CASE FILE: PETRILLO V. ROOKS 1
Contents
Case File Page
9. Answer of Defendants ULC and Harriett Yun (September 6, 2010)
10. Deposition of Ernestine Petrillo (September 7, 2010)
11. Deposition of Linwood Rooks (September 8, 2010) .......................................................
12. Deposition of Heather Sedalia Burr (September 10, 2010) .............................................
13. Deposition of Leland Lamprey North (September 13, 2010) ..........................................
14. Deposition of Laurabelle Epperson (September 14, 2010) .............................................
15. Order re Plaintiff’s Motion to Compel (September 20, 2010).........................................
16. Default Judgment (October 4, 2010) ..............................................................................
17. Defendants’ Motion for Summary Judgment (October 15, 2010) ...................................
1
Copyright © 2003 by David W. Miller
66
Criminal Procedure
Professor Linda Carter
The class is currently studying the admissibility in a criminal case of evidence
obtained in violation of the Constitution. Depending on time, the class may consider the
following:
1. Kuhlmann v. Wilson. The Sixth Amendment to the Constitution provides that “in
all criminal prosecutions, the accused shall … have the Assistance of Counsel for
his defense.” The Supreme Court has held that the police may not obtain
incriminating statements by knowingly circumventing the accused’s right to have
counsel present in a confrontation between the accused and a state agent.
Information obtained in violation of the Sixth Amendment may not be admitted
into evidence. A police informant is considered an agent of the state. In this case
Wilson was arrested for murder, and the police placed him in a jail cell with a
prisoner [Lee] who had agreed to act as a police informant. The police instructed
Lee not to ask Wilson questions about the murder, but to listen to what Wilson
said and to report any information Wilson gave about the murder. Wilson initially
told Lee the same story he had told the police [that he had been in the garage
where the crime took place but had not committed the crime] and Lee said the
explanation “didn’t sound too good.” Over the next few days Wilson finally
admitted committing the crime with two other men. The trial court admitted
Lee’s testimony and Wilson was convicted. The lower court said that the
information was obtained in violation of Wilson’s right to an attorney. The Court
in the Kuhlmann case had to apply earlier cases involving the use of informants.
In one of those earlier cases, United States v. Henry, the Court had found that
when an informant stimulated conversation with the accused in order to “elicit”
incriminating evidence, the resulting information is inadmissible. The Court in
Kuhlmann held that the informant had not deliberately elicited Wilson’s
admission that he had committed the crime. The Chief Justice concurred, and
Justices Brennan and Marshall dissented, on the ground that “the State
intentionally created a situation in which it was foreseeable that respondent would
make incriminating statements without the assistance of counsel….”
Professor Carter will discuss with the class the fine factual distinctions that determine
whether such informant testimony is admissible as well as information that accused
persons may give directly to the police under various circumstances. Her objective
will be to enable the students to understand the meaning of the “deliberate elicitation”
test so that they will be able to apply it to other factual circumstances. Professor
Carter will also have the students distinguish the rights under the Fifth Amendment
Miranda protections from the Sixth Amendment right to counsel protections. Under
Miranda, there is no constitutional protection from direct elicitation of statements
while, under the Sixth Amendment, there would be a violation. The students will
need to distinguish the two amendments, their protections, and the underlying
reasoning of each amendment’s protections.
67
2. The Fourth Amendment to the Constitution protects “the right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches
and seizures….” Evidence obtained in violation of the Fourth Amendment is
generally not admissible in a criminal case. However, there is a question of when
a person is entitled to the protections of the Fourth Amendment. In Minnesota v.
Carter a police officer peeked into an apartment window and saw the defendants
putting cocaine into plastic bags. The apartment did not belong to the defendants,
who had convinced the occupant to let them use it for two and a half hours in
exchange for giving her some cocaine. The defendants challenged all the
evidence that the state obtained as a result of the police observation through the
window. The trial court admitted the evidence and the defendants were convicted
of a drug crime. The Minnesota Supreme Court reversed the conviction, on the
ground that the police observation was an unreasonable search and that the
defendants were entitled to the protection of the Fourth Amendment. Five of the
U.S. Supreme Court Justices wrote separate opinions. The majority opinion, by
Chief Justice Rehnquist, said that the defendants had no legitimate expectation of
privacy in the apartment. The Court said this case was different from an earlier
case that had found that an overnight guest in a home has such an expectation. It
stressed the purely commercial nature of the defendants’ presence in the
apartment, the short period of time spent there, and the lack of other relationship
to the actual occupant of the apartment.. Justice Scalia wrote a concurring
opinion suggesting that the original intent of the Fourth Amendment was only to
protect people in their own homes, not those present as guests. He criticized a test
that would ask whether individuals had a “reasonable” expectation of privacy.
Justice Kennedy, who also concurred, found that “almost all social guests” have
an expectation of privacy in another’s home and, thus, ordinarily would be able to
claim a Fourth Amendment violation. In this case, however, he found that these
individual had too insubstantial and fleeting a connection to the premises and
occupant. Justice Breyer thought that the Fourth Amendment would protect the
defendants, but that the police observation had not been an unreasonable search.
Justice Ginsburg’s dissent applies the “reasonable expectation” test and finds that
these individuals, as guests in the home, had a reasonable expectation of privacy
that was violated.
Professor Carter will discuss with the class what the rule actually is after this very
confusing set of opinions. It will be essential for the students to understand how
important Justice Kennedy’s concurring opinion is for future cases. The key
interpretation of the issue of who can raise a Fourth Amendment violation lies in
Justice Kennedy’s “almost all social guests” standard. The case raises issues about
who can raise constitutional violations and why there are limits on who can benefit
from the exclusionary rule.
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Criminal Procedure - Problems
14A-2:
Lorenzo arrived at his brother's house at 7:00 p.m. His brother asked him to take care of his young son
while he went to the store. Lorenzo agreed to babysit the boy. He intended to go home to sleep in his own
house when his brother returned. Lorenzo's nephew was asleep in the living room, and Lorenzo was
sitting on the living room sofa when police officers entered ~nd searched the house without a warrant. In
two of the -bedrooms, the officers found cocaine and narcotics paraphernalia. Lorenzo had not gone into
the bedrooms that evening. The officers also found items with the contraband that furnished a connection
to Lorenzo.
Lorenzo was charged with narcotics offenses. He moved to suppress the cocaine and paraphernalia found
in the house. The trial judge denied the motion, concluding that Lorenzo could not object to any illegality
that might have occurred. Lorenzo appealed that ruling.
SHOULD THE TRIAL COURT'S DECISION BE REVERSED? WHY?
14A-6:
Scotty Lynn drove to Don Hall's house between 11:00 p.m. and midnight. The two men had been friends
for many years-since childhood. Lynn went inside with two or three bags. He deposited the bags in a back
bedroom and took a shower. It is unclear whether he slept while in the home. Around 3:00 a.m., local
police received a tip from a confidential informant that Lynn was at the house and that he had drugs. Two
officers went to the house. Another started the process of securing a search warrant.
Shortly before 6:00 a.m., Lynn came out of the house and drove away. The two officers followed him.
Before long, Lynn pulled over and parked on the wrong side of the road. He got out of the car and cleaned
the windshield, then got back into the car and drove away. The officers continued to follow him. After
four blocks, they stopped him for "failing to signal continuously 100 feet before an intersection." When
Lynn refused to consent to a search of his car, the officers summoned a canine unit. Twenty minutes later,
after the unit arrived, the dog failed to alert to the car. Finally, about one hour after they had initially
pulled Lynn over, the officers arrested him for "parking on the roadway facing traffic." They impounded
his car, and towed it to the police station. During an inventory search, no contraband was found.
Meanwhile, around 8:00 a.m., other officers, armed with a search warrant, searched Don Hall's home.
They seized Lynn's bags from the back bedroom and opened them. Inside, they found five grams of
cocaine and forty grams of amphetamines. Lynn was charged with possession of contraband. In light of
the amount of narcotics found, the offense was punishable by up -to 99 years in prison.
Lynn sought to suppress the contraband from his trial on Fourth Amendment grounds. He provided
evidence that he had spent nights at Hall's house for years on an irregular basis and that he had stored
items at Hall's house on previous occasions for substantial lengths of time. There was no evidence that
when Lynn left Hall's home at 6:00 a.m. on the morning of his arrest he intended to return to the home
any time soon. The trial court refused to reach the merits of Lynn's constitutional claim, concluding that
he lacked "standing" to raise that claim. Lynn has appealed that ruling.
HOW SHOULD THE APPELLATE COU.RT RULE?
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McGEORGE SCHOOL OF LAW
FIELD PLACEMENT PROGRAM
Experiential Learning Presentation
Colleen Truden, Director of Field Placements
November 5, 2010
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
Experientially based, skills centered
course

Off-campus legal work at the work place

Reflective component
Field Placement Program
99

Expand and improve legal skills

Increase knowledge of substantive and procedural law

Learn the mission of the placement site and observe
attorneys in the work place

Begin to form professional relationships and develop a
network

Socialize the student’s professional and personal identity
and persona
Program Objectives
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• Gain insight into the manner in which legal theory and principles learned
in academic courses are applied to solve actual legal problems and
controversies;
• Develop practical skills in legal research, writing, negotiation, interviewing
witnesses, and the many other tasks routinely undertaken by practicing
lawyers;
• Experience how ethical standards inform the practice of law;
• Better understand the lawyer’s role in our legal system, explore career
interests in a variety of legal settings and begin to build
a professional network; and
• Learn to balance and satisfy the sometimes competing demands of
supervisors and co-workers, as well as other work, study and personal
obligations, while performing legal tasks or representing clients in a zealous
and professional way.
Program Objectives
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Program Basics

Students

Placements

Supervising
Attorneys

Seminars
REAL-WORLD EXPERIENCE
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Students
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Government and
Non-Profit Organizations Provide
• Responsible Supervising Attorney
• Specific educational opportunities
• Appropriate workplace environment
Placements
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Legal
Projects
Constructive
Mentoring
Feedback
Supervising Attorney
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Seminar Leaders
•Professors provide instructional resources
•Evaluation and grading
Reflective Component
•Guided Reflections
•Journal Entries
Classroom Component
•Discussion
•Instruction
Student Contribution
•Shared experiences
•Questions
Seminar
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Judicial Externships
Federal and State Court opportunities develop judicial decision-making skills
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Contact Information:
Colleen Truden, Director
Field Placement Program
McGeorge School of Law
3200 5th Avenue
Sacramento, California 95817
Telephone: (916) 340-6104
Email: [email protected]
For more information and forms visit us at:
go.mcgeorge.edu/fieldplacements
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“Will Video Kill The Radio
Star?: Visual Learning and
the Use of Display
Technology in the Law
School Classroom”
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Professor Fred Galves
Part One: Ignoring Reality. . .
Our students’ learning context as a
“FUNNEL” of Experience vis-à-vis law
school – Where are they coming from?
Their Life
Experience
Their Future
Professional
Experience
(Primarily
Litigation)
A
B
C
Society
(general context)
General
Education
Practice
of law
Their
Educational
Experience
?
(The Rest of
Academia)
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A. General Society
(1)
(2)
Students are exposed to an unprecedented
amount of visual images (Internet, T.V.,
Movies, Magazines, Advertising) and they
are very experienced at interpreting that
visual information, so they are not limited to
verbal information (written/spoken words)
Beyond Entertainment: political speeches,
documentaries, instructions, directions,
“How to” books, various professions
(Business, Medicine) all use visual images
like never before
111
Persuasive Power of
Visual Images
Seeing is believing -- visual
communication in addition
to just the spoken word
Kennedy/Nixon debate:
Nixon wins!
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Kennedy wins!
Competition for Attention?
 By
the time a child is
finished with high school,
he or she has had 11,000
hours of classroom instruction
 15,000
hours in
front of a TV
 and very few hours listening to
an attorney.
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B. Academia/Education
(1)
(2)
(3)
(4)
Our students are growing up with
technology and computers in grade school
and high school and will continue to do so
Colleges and other graduate school
programs use display technology to a much
greater degree than law schools
Will students come to expect it, or wonder
why it is not being used?
Instead of being “cutting edge” would we be
just “keeping up” with the rest of academia?
So is law different? Language/concepts
114
(5)
C. The Legal Profession/Litigation
(1)
(2)
(3)
Modern “wired” technological Courtrooms
underscore what is happening ALREADY
with display technology in the legal
profession, especially litigation
Already a rich history of using visual aids at
trial – jury understanding --> jury persuasion
If a lawyer has bad facts/law they may go for
jury confusion, but lawyers counter with
jury clarification (if the facts & law are on
their side): also retention/recall/application
But are jurors and law students the same?
115
(4)
D. Law School Classrooms
(1)
(2)
(3)
(4)
Does our students’ classroom experience
reflect 21st Century reality? . . . Or is it
essentially the same as it was 100 years ago?
Compare the change in medical school,
business school and undergraduate education
Can we still expect to keep “modern”
students engaged in class . . . Reality check?
How many students are playing solitaire,
surfing the Internet, instant messaging their
friends, checking their e-mail, checking
scores on-line . . . DURING CLASS?
116
D. Law School Classrooms
(1)
(2)
(3)
(4)
True, students could read the paper years
ago, but there has been a cultural shift
Do we “give in” to the dumbing down/
shortening attention spans of students or
should we teach the way many learn?
But is using display technology the “death of
classroom intellectualism”?
Doesn’t it really depend upon WHAT
EXACTLY the professor is doing with the
display technology? How the tool is being
used? . . . “Don’t shoot the messenger”!
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PART TWO: The Pedagogy
If you are not opposed to using visual aids at
trial, or the chalkboard in a traditional
classroom . . .
Then you probably should not be opposed to
display technology – at least in theory
“Super” chalkboard/super visual aid
Get two chances to connect
with the brain through
sight and sound, together,
instead of just one
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Ways to Use: Pedagogical Goals
Actual Examples
(1) TO SUMMARIZE what
has been covered;
TO SYNTHESIZE what we
are learning
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Ways to Use: Pedagogical Goals
(2) TO BUILD THE CASE
when a student is called on
TO REINFORCE KEY
FACTS VISUALLY
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Ways to Use: Pedagogical Goals
(3) TO ASK
HYPOTHETICAL
QUESTIONS
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Ways to Use: Pedagogical Goals
(4) TO DIAGRAM legal
doctrines visually
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Ways to Use: Pedagogical Goals
(5) Time lines
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Ways to Use: Pedagogical Goals
(6) VENN DIAGRAMS:
TO EXPLAIN
CATEGORICAL
RELATIONSHIPS
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Ways to Use: Pedagogical Goals
(7) TO EXPLORE KEY
TEST (gaps, conflicts &
ambiguities)
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Ways to Use: Pedagogical Goals
(8) TO VISUALLY
EXPLORE LEGAL
ISSUES
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Ways to Use: Pedagogical Goals
(9) STILL USING THE
CHALKBOARD
(METHODS NOT
MUTUALLY
EXCLUSIVE)
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Ways to Use: Pedagogical Goals
(10) TO USE MUTLIMEDIA AS TEACHING
VEHICLES
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The 5 rhetorical questions
Dumbing down
(2)No Spontaneity
(3) Technology’s sake
(4) Exchange Suffers
(5) Electronic Spoon-feeding
(1)
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Law School Teaching
Technologies
Monica A. Sharum
Emerging Technologies Librarian
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Agenda
• Introduction
– Generally
• Examples
– Classroom management systems
– U.S. legal research
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Teaching Technologies
• Covers a variety of topics
– Hardware
• Laptops
• Clickers
• Cameras
– Classroom learning management systems
– Free U.S. legal research U.S.
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Virtual Learning Environments
• Virtual learning environments are also known as
– Classroom learning systems
– Classroom management systems
– Collaborative learning education
• Definition
– Generally an internet based system used to provide
information and to communicate with students about
class
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Virtual Learning Environments
• Examples: Sakai and Moodle
– Open source
– Must download class materials to server
• More information:
– Sakai
• Presentations from the February/March 2008 Sakai
Foundation visit to China
http://confluence.sakaiproject.org/display/China/Hom
e;jsessionid=98DBADC1C5095D52C3A240BFF1375367
– Moodle
• Moodle homepage http://moodle.org/
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Virtual Learning Environments
• Common features:
– Communication tools
• Allows you to communicate to all or some of the class
through the site
– Document posting
• Allows you to post documents for the class to review
– Assessment
• Allows online testing or submission of documents
• Other features – depending on program you use
– Calendars, wikis, blogs, sign-up sheets, RSS feeds, etc.
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Virtual Learning Environments –
Communication Tools
• How they work varies between programs
– Announcement / Bulletin Board
• Posting messages on the classroom site for all
students
– Live chat rooms
• Allows synchronous (live) discussions
– E-mail
• Generally allows e-mail to all or some of the students
from the course site
– Discussion Board
• Allows asynchronous (not live) discussions
– Can respond hours or days later
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Example of Sakai – Advanced Legal Research at
McGeorge School of Law – Home Page
Basic information
about your course
Most recent chats are
displayed on the home page
143
Make general announcement to
your class
Example of e-mail
•Features vary by system
•Most allow e-mailing of registered
students either individually or as a group
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Example – Discussion Forums
•Features vary by system
• Allows asynchronous discussions
145
Virtual Learning Environments –
Document Posting
• Allows the uploading of documents for students to
view or download
• Some programs will convert documents to html
• Programs vary on types of documents that can be
uploaded
• May limit the size of the document to be uploaded
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Example – File Uploading
•Create files
•Upload individual documents
147
Many of these
programs have the
ability to edit who
can see the materials
and when they are
available
148
Virtual Learning Environments –
Assessment Tools
• Drop Box – exchange documents with an instructor
in individual folders
• Assignments – create and submit text-based
assignments
• Tests & Quizzes – create, edit and manage online
test or quiz
• Polling tools – take polls in your class
149
Virtual Learning Environments –
Assessment Tools
• Quizzes or test
– Vary greatly by program
– Generally available
• True/False
• Multiple Choice
– May automatically populate an online grade book
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Top part of the page
•Assignment open and due
dates
•Late assignment
•Allow resubmissions
•Add announcements
•Review service (may
not be available)
•Notification of
submissions
•Add attachments
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Virtual Learning Environments –
Other Tools
• Blogger – create a blog (a web journal) or have your
students create a blog
• RSS Feeds – Tools that allow you to create RRS
feeds of either audio or written materials
• Wiki – creation of multi-user editable web pages
153
Can add text,
images, links and
files – similar to
blogging tools on
the internet
Can make private
154
Clinic Guide
Can be added to by anyone – faculty,
staff or student
Can make students write part of the
procedures as a method of teaching
155
Google
• Various features of Google can be pieced together
to create a simple virtual learning environment
• Privacy is always an issue with Google
– Google will “crawl” pages and documents so those
materials can be accessed through a search
– Must be careful when selecting privacy settings
156
Google Docs – Sharing Documents
Three options for sharing
presentations on the web
•Public – can find with a
Google search
•Link – must send a link,
but anyone with the link
can see the document
•Private – grant individual
permission (person must
have Google account)
157
Google
• Google groups
–
–
–
–
Discussion groups
E-mail groups
Design web pages
Share files
• Privacy again is an issue
158
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Google – Other Features
• Blogger
– Share a blog with your students
• Sites
– Create wikis
• Gmail
– Email
• Google docs
– Document posting
• Calendar
– Create a calendar and share it
• Picasa
– Sharing photos
• Privacy is an issue
161
Google Privacy
• Google dashboard
– Allows you to control privacy settings in general
• Some Google tools have privacy settings as well
– Need to check each tool you use
• Must check both the tool and the dashboard
162
Free Legal Research – United States
• Government website
– Official ?
• It is the official government site
– Authenticated ?
• Information is correct and what it purports to be
• Search engines
– Evaluating results
• Who published the website?
• Is it official?
• Is it authenticated?
• How old is the website and has it been updated?
• Is there bias?
163
U.S. Research
• Federal Government’s website
– GPO Access – federal government portal
• www.gpoaccess.gov
– Fdsys is part of the government’s website
• Has authenticated documents
• http://www.gpo.gov/fdsys/
– Individual branches or agencies may have their own
website
• U.S. Supreme Court
– http://www.supremecourt.gov/
164
State Information
• State governments have their own websites
– Information may not be official
– Information may not be authenticated
• Simple Google search will often find individual state
websites
165
Finding U.S. Law
• Search engines
– Google Scholar http://scholar.google.com/
• Portal sites
– Findlaw http://www.findlaw.com
– Cornell Law School http://www.law.cornell.edu/
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Thank you
Questions?
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中国法律诊所教育发展的展望与思考 — 访美观感
A Reflection on and Outlook for the growth of
Clinical Legal Education in China – Upon a Visit
to a US Law School
---刘建明教授 Professor Liu Jianming






一.我眼中的美国法律诊所教育
I. US Clinical Legal Education in my view
1,协调,有序的外部运行环境
1. Collaborative and supporting environment
校外资源 External resources
(1)司法实践部门的支持 Support from judicial departments and
institutions
 (2)当地社会组织的配合 Collaboration with local social organizations
 (3)丰富的案件来源 Rich sources of cases
176












校内资源 Internal resources
(1)学院保证诊所正常运行的资金需求
Financial support guaranteed by law school authorities
(2)行政部门对诊所运行给予充分的技术支持
Technical aid provided by administrative departments
2.规范而严密的诊所内部运行机制
Standardized and rigorous inner-clinic operation
3.丰富而实用的教学资源
Abundant and practical teaching resources
(1)丰富的真实案件 rich sources of live cases
(2)翔实的各种数据库 abundant digital data
(3)实用而有效的现代化教学手段 pragmatic and effective
modernized teaching techniques
177
 4.具有丰富实践经验的教学队伍
 Talented faculty with rich experience of
practice
 5.完善而实用的教学内容
 Systematic and practical teaching
contents
 6.和谐而健康的师生关系
 Harmonious and healthy relationship
between teachers and students
 7.成熟而勤奋好学的美国学生
 Mature and diligent students
178
 二,中国诊所教育十年 —欣喜与遗憾
 II. Ten Years of Clinical Legal Education in China ------ Joys and Pities
中国法律诊所教育十年的成就与欣喜
Achievement in the Past Ten Years
1.诊所的数量呈爆炸式增长 Rapid increase in the number of legal clinics
2000年开始仅有七所院校在同年9月开设了最初的诊所式法律课程。在2002年
7月28日，十一所院系发起成立了中国诊所法律教育专业委员会。截止10年
10月27日,河北工业大学城市学院成为第139个会员单位.
Clinical legal education in China began with 7 law schools first launching
legal clinical programs in September, 2000. And on July 28, 2002, 11 law
schools co-founded the CCCLE. By Oct. 27, 2010, with the accession of
Hebei University of Technology City College, members of CCCLE
increased to 139.
2.诊所主题课程繁多,精彩纷呈
Clinical programs specialized in a variety of areas
全国共有82个会员院校开设了诊所课程，共计开设不同主题诊所课程130个。
82 member law schools offer clinical programs to students and set up 130
clinics specialized in different areas of law.
179
中国法律诊所教育之遗憾
Pities of Clinical Legal Education in
China
 对于过去岁月流逝的惋惜,对于美好未来的向往与憧憬,
更是对诊所教育事业一份执着。
 Regret for the past is not in contradiction with the
hope for future, instead, it represents the one’s
perseverance in the cause that he pursues.
 批评而不是指责,而是为了出于对诊所教育的真爱,而是
为了中国诊所教育能够有充实的、灿烂的另一个十年
 Criticism does not mean blame. Instead, it is made
out of my enthusiasm for clinical education, wishing
that there will be another more fruitful ten years for
the Chinese clinical legal education.
180
1.十年快速增长始终无法解决外部运行机制
External environment remains unchanged despite the ten-year rapid growth.
 (1)过度依赖福特基金,始终无法从根本上解决诊所运行的资金需求
 Chinese clinics have been over relying on Ford Foundation and found no
effective channels so far to steadily raise necessary funds for the
operation of clinics.
 (2)十年快速增长始终无法掩饰诊所教师的窘境与尴尬
 Clinicians are still caught in dilemmas.
 (3)十年快速增长无法彻底得到社会最终的认可
 There is till a long way to go to gain social acknowledgement.
 学生办案身份没有根本转变
 Students’ status as unqualified lawyers remains unchanged
 法律诊所课程在实际的工作中无法与社会直接衔接，特别是诊所教育与司法
行政机关缺乏联动机制，从而使得社会对诊所教育这门课程的认知度不够。
 Clinical courses cannot be directly related to social practice because the
little social recognition resulted from the lack of interaction between clinics
and judicial departments.
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2.诊所课程的教学内容的系统性和完善性亟待解决
Teaching contents need to be further systemized and polished.
（1）教学内容空乏，缺乏针对性
Current teaching contents are general and empty.
（2）多停留于介绍与模仿,缺乏创造性
Most are introductory and imitative, lacking in creative thinking.
（3）教学内容偏重于形式,而没有真正挖掘诊所教育的实质内容
The teaching is biased for superficial contents instead of the
core contents of the clinical legal education.
（4）主题诊所虽然名目繁多，但是具有特色内容的不多，大多
还是停留于一般化的介绍。
Although there are a variety of specialized clinics, not many of
them can really offer students specialized teaching contents,
most of them are still fully engaged in general introductions.
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3.诊所教育的学术氛围严重不足，资源共享徒有虚名
There is little academic climate of clinical education. And the socalled “data-share” is more in name than in reality.
（1）CCCLE的网站内容陈旧,无资源可享
CCCLE’s website contents are out of dated. And there is
actually no data to share.
（2）校际学术交流不甚理想，彼此各自为阵，缺乏真诚的、善
意的、良性的学术性交流
Inter-school academic communication is poor. Most law schools
are self-centered in academic research, which leads to the
lack of sincere and beneficial academic exchange.
（3）每年诊所年会严重缺乏学术氛围,主题基本上是自我吹嘘,陈
词滥调,讨钱大会
 Paying little attention to academic research, CCCLE’s annual
conference is almost absorbed in self-boasting, clichés, and
talks on how to raise funds.
183
三、敢问路在何方？诊所发展的未来展望
III. Where is the Way? A prospect of the Clinical
Legal Education in China
 “法律不是逻辑，而是经验”,“像律师那样思考”，甚至“像律师
那样工作”，已经成为中国诊所教师的共识和教育目标。
 “Law is not logic, but experience”, “Think like a lawyer”, and
even “Act like a lawyer” have already commonly accepted by
Chinese law teachers and become their goal of teaching.

但是当务之急是如何在实际教学过程去贯彻和落实这些基本理
念，即如何去培养学生能够像律师那样思考像律师那样工作。它
需要哪些环节、过程和方法都是中国诊所教育急需解决的基本问
题。
 However, what is urgent now is how to adapt teaching to those
basic concepts, that is, how to cultivate students to think like a
lawyer and to act like a lawyer? What are the steps, processes
and methods? To answer those questions is what the current
Chinese clinical legal education must primarily address.
184
 与其临渊羡鱼,不如退而结网。
 Doing is better than dreaming.
 在目的与手段之间,有明确的目的固然重要,但如果没有实现这一目
的必要手段,目的将是空幻的而不切实际的。先去努力解决手段问题
。如同我们要过河,得首先解决船和桥的问题。
 A clear goal is important. But if there are not necessary measures
to realize the goal, the goal is a mere dream. Therefore, to find out
proper measures is our first concern, just like when we want to
cross a river, we’d think about building a ship or a bridge.
 中国诊所未来急待解决二大问题
 Two problems that Chinese clinics need to address in near future:
 1、诊所课程教授什么样内容(即教学体系问题)
 What to teach? ( i.e. the issue of systematic teaching contents)
 2、诊所课程如何教的问题（教学办法与教学手段）
 How to teach? (i.e. the issue of teaching methods and techniques)
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 怎么样教的问题：As to how to teach:
 外国同行特别是美国教授已经传授给我们很多、很优秀的教
学方法和手段，而且中美法律文化在这一领域中的差异并不
太大，国外特别是美国许多行之有效的教学方法与现代化的
教学手段完全可以在中国的法学教育中借鉴与模仿。因此，
在教学方法上可以更多地学习和借鉴国外同行的经验和成果
。其重点应当放在如何去积极学习，消化和吸收的国外有益
的经验和方法。
 Our foreign fellow clinicians, especially the US professors
have already taught us many good teaching methods and
techniques. Since there is little difference in the area of
teaching between Chinese and American legal culture, we
may well learn and imitate their effective teaching methods
and modern teaching techniques. Therefore, to address
the issue of teaching methods, we need to actively learn
and digest foreign experience and ways.
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 关于教什么的问题 As to what to teach:
 当下中国诊所教育需要迫切解决两个问题：
 Chinese clinical legal education is in urgent need to solve the following
two problems:
 （1）诊所课程的教学体系的系统化、规范化问题以及诊所课程与传统课程
的衔接问题
 How to systemize and standardize the teaching contents of clinical
programs? And how to build up the coherence between clinical teaching
and traditional teaching.
 （2）如何结合中国的司法实践来充实教学内容，使学生能够学以致用，学
有所用
 How to enrich the clinical teaching contents with judicial practice in China
so as to enable students to apply what they have learned to practice.
 解决问题的方法 Solutions:
 方法之一是对外来的教学资源的学习、消化、吸收
 Solution 1: to learn and digest oversees teaching resources.
 方法之二是对中国本土的教学资源的研究、总结、运用
 Solution 2: to study, summarize and employ local teaching resources.
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 考虑到中国司法体系、教育体制与国外具有
较大的差异性，因此，就诊所教育的教育内
容而言，其重点应当立足于中国本土资源，
着重于探索和创新，摸索具有中国特色的实
践教学体系。
 Considering the big difference in legal
system and educational system between
China and Western Countries, the
research on the clinical teaching contents
should be focused on the local teaching
resources. We should explore and create a
Chinese way to conduct clinical legal
education.
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太平洋大学麦克乔治法学院法律诊所
LL.M. Seminar in Experiential Law Teaching
法学实践教学中的法律硕士课堂研习
Blaustone 六步反馈教学法
November 2, 2010 年11月2日
Professor Dorothy Landsberg 多萝西· 兰兹伯格教授
Professor Liu Jianming 刘建明教授
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Blauston 六步反馈教学法
Step One: The student Identifies Strengths of the
Performance 第一步,学生自己来指出在工作的优点
-The student should identify those aspects of the work that
she feels were done well or with which she feel satisfied. The
student should include an identification of what the
performance accomplished.
-学生必须指出自己在工作做得好的或者能让自己满 的方面,学
生的自我评价应当包括学生已经取得了哪些工作成果
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Blauston 六步反馈教学法
Step Two: The Supervisor Responds Solely
To Those Items Raised by the Feedback Recipient
第二步:督导对学生自我评价的反馈
In this step, the supervisor confine their remarks to the
points that were raised by the student. Only positive
feedback should be given at this point.
在这一步骤中,督导的反馈仅仅针对学生的自我评价,这一阶
段,督导应当以积极的正面鼓励为主.
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Blauston 六步反馈教学法
Step Three: The Supervisor Identifies Other
Strengths of the Performance
第三步,督导指明学生其他方面的优点
The supervisor now adds additional points that were done well. This wideopen stage explores all facets of the performance that were accomplished
satisfactorily or that show a potential for success, with specific illustrations
of why these aspects were executed successfully.
这一阶段,督导要用开放式的形式来挖掘学生在其他方
面的成功表现.要用具体的 事例来全面广泛地分析学生
成功的原因.
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Blauston 六步反馈教学法
Step Four: The Student Identifies Difficulties and/or
Changes to be Made
第四步,学生自我分析工作中的不足/或者需要改进的
方面.
In this step, the student takes the initiative in identifying area
in need of improvement. The student should come forward
with specific comment.
这一阶段,学生要总结自己需要改进的方面,并且要积
极进行具体的分析和评价
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Blauston 六步反馈教学法
Step Five: the Supervisor Responds to the
Identified Difficulties
第五步,督导对学生自我反思的回应
The supervisor confines their remarks to this point
exclusively to those issues raised by the student. The
comments should indicate how the issue could be handled
differently next time.
督导的评价仅仅针对学生的自我反思,并且应当
指出下次如何来处理同样的问题.
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Blauston 六步反馈教学法
Step Six: the Supervisor Indicates Additional
Difficulties
第六步:督导分析学生其他方面存在的不足
This final step involves another wide-open exploration of all
facets of the performance. This time, the discussion focuses
on aspects that were not satisfactorily accomplished, again
with specific illustrations and concrete given at this point.
最后的阶段,督导要全面广泛地分析和探讨学生的表
现,特别是要用具体事例和实在的分析来剖析学生存
在的不足.
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