Don’t worry: no spoilers. (Okay, one little bitty spoiler a ways down, but you’ll get a second warning.)
A few weeks back, following the death of Ben Bradlee, I re-watched All the President’s Men. I’m pretty sure I hadn’t seen the movie since before I went to law school. Even by that time, it was an “old” movie, but it still holds up.
And of course, like everyone else, I’ve been listening to the Serial podcast, which wrapped up this morning. Listening to Serial and watching All the President’s Men got me thinking: investigation of facts is a critical aspect of good advocacy, and something law schools could probably do a better job of teaching.
Here’s what I mean: Many law school classes teach a particular sort of legal reasoning. A student is given a case or line of cases on a narrow topic, which she reads, synthesizes, and (we hope) understands. Then at the end of the quarter the professor provides a short fact pattern that exploits some complexity or ambiguity in the case law, and the student is supposed to apply the case law to the fact pattern. Screw up the rule, you get a “bad” grade. Accurately state and apply the rule (for the most part), you get a better grade. State the rule with precision and apply it rigorously, you get a good grade. When teaching these rules, a professor might spend a class or less on a particular topic before moving on to the next one. To cover a field like torts or contracts, for example, it’s necessary to do a bit of skimming across the top.
In more in-depth “skills” classes, like my Legal Analysis, Research, and Writing (LARW) class, students are given more complex fact patterns and longer assignments, which focus on one area of the law and often require additional legal research. But even then, though the fact patterns are longer, they are still provided to the students.
One way my colleagues and I try to address this problem in our 1L LARW course is to provide the students with a huge pile of actual discovery documents: declarations, depositions, primary source documents, etc. Sure, the information is provided to them, but there’s a lot of work to sift through it and make judgments about what is irrelevant (most of it) and what is useful. Still… it’s not the same as making them actually go out and create a record.
In my upper-level motion drafting class, I can go a step further. Using a real case (I get the record and documents from PACER), I give the students the Complaint, the Answer, and perhaps a short declaration from their “client.” Then we spend a class as a “litigation team” trying to come up with a discovery strategy. What kinds of documents should we ask for? Who do we want to depose? How might we phrase some useful interrogatories? Etc. I think the activity is useful, but it is still a weak imitation of real-life factual investigation.
Which brings me back to Serial and All the President’s Men. In both productions, actual shoe-leather pounding-the-pavement factual investigation is critical to the final product. For example, Robert Redford and Dustin Hoffman don’t break the case by sitting in their office doing research. There is no database that has the answers. There is no treatise for them to consult. They use personal connections and relationships to get a list of people and then they go person-by-person and interview everyone.
A person in Miami might have information relevant to the investigation? Well then get on a plane to Miami and wait in the guy’s office all day before forcing yourself in there to get what you need.
You think records from the Library of Congress might contain relevant information? Go there and ask to review the records. The first guy tells you no? Find another guy who tells you yes. And then spend the entire day looking through library checkout slips.
And the same with Serial. How can we find out whether the timing works with the buses leaving the school? You actually need to get out there and do it. How can we determine the inconsistencies in a witness’s testimony from one trial, to the second trial, compared to pre-trial interviews? You actually have the read the entire transcript from each proceeding. And so on and so on. (Okay, small spoiler here I suppose, but the thing that really inspired this post was from today’s episode, where they looked through court filings to find a 1999 customer agreement for an AT&T cell phone and read all the fine print to figure out the plan’s pricing policy. I mean… goodness!)
Back to law school: Creating a favorable factual record is one of the best ways to help your client. Figuring out the right questions to ask, getting those questions answered in a beneficial way, knowing what documents to ask for, reviewing them diligently with an analytical eye (rather than just checking off the “to do” list), and generally just being creative in thinking about facts–these are critical advocacy skills. What would I want to show the Judge or the jury to make them decide in my favor? How can I assemble the facts necessary to make that showing?
At the end of the day, I’m not sure how law schools can best teach those skills. Sure, simulations help. And clinical work is invaluable. But maybe there’s no great way to teach the judgment required to realize, you know, you might need to sit in that storage room for a week looking through old employment records.
But I’m not defeatist! If you’ve got ideas, lay ’em on me.