Inside the 3L Litigation Immersion – Day 1
Hannah Shtein is a 3L from Milwaulkee, Wisconsin. She’s blogging about her experience in W&L’s fall litigation skills immersion, one of the key components of the School’s innovative third-year curriculum.
“As law students, we are frequently encouraged to talk at—rather than to—people…. In a conversation with a client, we are looking for answers that the client may not yet know how to give, so we have to learn a certain finesse, a conversational art, that will help us get the answers we need from our clients but that is also responsive to our clients’ questions and concerns.”
Monday, September 1
9:00-9:45 am – Opening Session
Our first immersion event is an introductory session by Professor Moliterno. I’m still waiting for coffee to kick in, so I’m happy not to have to to form any of my own sentences for at least another couple hours, but I’m also thankful for a primer on what we will be doing that day before having to jump right into it. I wish that happened more often in the real world. Professor Moliterno gives an overview of what we will be doing in the next couple of weeks, and reminds us of the importance of getting to practice before we dive into actual law practice.
This semester’s immersion is all about litigation (next semester’s will be transactional). Professor Moliterno says he knows some of us already know we are not interested in litigation, but that some of us may change our minds after having an opportunity to give it a try. I’m feeling fairly certain that I will not be part of the group of mind-changers—I can feel my rising heart rate in my ears every time I have to give a five-minute PowerPoint presentation, so the prospect of presenting a client’s case to a judge and a jury is more than a little frightening. But at the end of the day, the ability to get a taste of what real-life practice, beyond theory, is really like, is what drew me to W&L and its curriculum. If I confirm that I hate litigation, fine, but entering the work world with that knowledge is an opportunity few law students have upon graduation.
9:45-12:00 pm – Presentation on Interviewing a New Client, and Practice Interview Exercises
Dean Natkin next talks with us about how to interview clients. We’ve received a packet of information with roles each of us will play and a backstory for when we will be interviewed by other students who will be our lawyers, as well as the names of the students who will be our clients. Later that day, each of us is to interview the student who has been assigned as our client, and we are to be interviewed by the students who are playing our lawyers. This will help us better understand the cases we have been assigned, and later to draft the complaint and other legal documents for representation.
Dean Natkin gives us several strategies for client interviews, and reminds us that interviewing a client is not the same as having an ordinary conversation like the kind we have daily. This seems like an obvious point, but—as I experience firsthand later that day—interviewing clients is not as intuitive as it may seem. As law students, we are frequently encouraged to talk at—rather than to—people. Exams and cold calls do not reward us for having a conversation with the professor; they reward us for articulating an answer of a certain kind. We learn to know what kind of answer is expected and to give it. In a conversation with a client, we are looking for answers that the client may not yet know how to give, so we have to learn a certain finesse, a conversational art, that will help us get the answers we need from our clients but that is also responsive to our clients’ questions and concerns. This requires engaging with the client in a particular way that we may not be used to.
At 11:00am, after Dean Natkin finishes her presentation, we break into small sections to practice the techniques she has taught us. For instance, asking open-ended where/how/why/questions (E.g., “Tell me about why you are here.”) at the beginning of the client interview to get the client to open up and tell his/her story, and gradually moving toward more narrow questions to close in on details (E.g. “Didn’t you say that the incident occurred on Tuesday?”). At one point in our practice sessions, my phone goes off, and for the five seconds I focus on registering who is calling me and turning the sound off, I miss what my “client” is saying, and have to ask again, which of course would not make the best impression in a real-world context. Of course rookie mistakes happen to everyone, and I am usually smart about keeping my phone turned off during school or work, but this is a good reminder to be doubly sure that I will not be interrupted by annoying personal technology before I sit down with a potential client.
1:30-6:00 – Client Interviews
During this part of the day, students have been scheduled for two 30-minute time blocks—one to interview a client played by another student, and one to play the client for a student serving as our lawyer. Both interviews are recorded so we can watch them later and reflect on our performance in our homework. We prepare for our client roles by reading the information we have been given about our situation, but we are instructed not to bring the information into the interview, so that we may be more natural and conversational with our “lawyer”, rather than reading our narrative verbatim from the handout. I do my best to stay true to my role of Gerry Mancini, a gas station owner who is being sued by a former employee for wrongful termination—the employee claims he was fired for exposing the environmentally dangerous practices of my gas station. While I am mentally judging my character for not having any understanding of environmental regulations affecting her (my) business, I am thankful for her political connections to the state regulatory agency. I tell my lawyer that perhaps my powerful political allies will get me out of this mess of a lawsuit. If only.
My role as lawyer is more difficult. I try to focus on the techniques Dean Natkin has taught us, but when I watch my interview I notice that I am so worried about getting all the facts of the case from my client that I find it harder to express the empathy and responsiveness necessary to make my client comfortable. I come off as rushed, because I am trying to get to the bottom of the situation (and because I’m nervous!). My client is a detailed storyteller, and I am tempted several times to interrupt her to go back to a previous part of the story, or to direct her toward one issue rather than another less relevant one. By the time I wrap the interview up at 5:30, I’m more than ready for a break (but am not looking forward to homework). This active learning thing is more intense than the classroom. Tomorrow, we learn about client counseling and case development. Until then!