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Inside the 3L Litigation Immersion – Day 2

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.

Tuesday, September 2

I’m late for my second post, but I have a good excuse, I promise! Tuesday night, we had to draft complaints for our clients to turn in to our Senior Associates (small section professors) by 8am the next morning. My finished complaint was only three pages, but by the time I had decided what should go into it and what should be excluded, what was relevant and what was not, I had spent longer than the hour I had initially anticipated it would take. But this happened on Tuesday night, so I’ll rewind to the morning.

9:00am-11:00am – Debriefing Interviews and Client Counseling Presentation/Demo

First thing in the morning, we meet with our small section instructors/senior associates to discuss the interview process from the day before. Several people echo concerns that are similar to mine, such as the difficulty of keeping the client on track when he/she goes off on a tangent that may not be relevant to the case, or forgetting to ask the client certain questions because we are so busy writing things down.

Next, we move to the client counseling presentation and demonstration. The client counseling meeting is generally the second meeting after the interview, when we, as lawyers, have decided to take the client on, and have had a chance to do a little legal research on the facts he/she has given us. At this point, we are able to ideally come into our second meeting with the client with a little bit more strategy regarding how we are planning to approach his/her case, and to discuss the implications of the research we’ve had a chance to do.

For instance, when I interviewed my client, she told me she was an at-will employee who was hired with a handshake and a promise of fair treatment. At the time of the meeting, I did not know what that meant for the status of my client’s potential claim. At the time of the client counseling meeting, I would have been able to research laws relating to termination of at-will employees in our assigned jurisdiction, so I could approach my second meeting with a strategy.

We see some of this play out in the client counseling demonstration that a couple of our small section professors act out. The professor playing the lawyer informs the professor playing the client that the client’s status as an at-will employee makes it more difficult for her to claim that she was terminated unfairly, because at-will employees can usually be terminated at any time, with or without cause. This of course has consequences for the strength of the case, and whether a settlement agreement can be reached.

12:30pm-2:05pm – Pretrial Strategy and Case Development/Theory Exercises

After the client counseling presentation, we listen to Professor McDonnell present on pretrial strategy. Professor McDonnell draws on Aristotle’s Triangle (maybe my philosophy major isn’t completely useless?) to note the importance, in our pretrial strategy, of covering all three of its sides: ethos (establishing credibility), logos (appealing to logic), and pathos (appealing to emotion). He also discusses the need to avoid several types of bias in information gathering (as we research our case) that we are all prone to: confirmation bias (we find and rely on information that supports our existing perspective), availability bias (placing too much emphasis on information that’s available to us at the time we are researching), and aversion bias (we avoid doing things we find unpleasant). I’m guilty of all of these, so the point is well taken.

Next, we break up into small sections to discuss the theory and theme of our cases. The theory of the case is the actual legal aspect of how it is proved (cases, witnesses, etc.). The theme of the case is the psychological hook that a lawyer uses to persuade the jury—it’s the lawyer’s time to be creative. This is the fun part of developing the argument, but it’s also harder than I expect to come up with convincing themes for our cases when we practice in our small groups.

As our example, we use Goldilocks and the Three Bears (a still-unsolved legal mystery for the ages). We are prosecuting Papa Bear, and we decide that our narrative should be based on Papa Bear’s predatory nature and irrationally violent response to finding Goldilocks in his bed—he is a predator and a threat to society.

Of course it’s entertaining to brainstorm about a children’s tale, but it’s more difficult to find a theme that sticks in the jury’s minds when you’re dealing with real people, who are more nuanced than storybook characters (not that bears aren’t nuanced). I want the jury to think that my client is an innocent employee who has been taken advantage of by a price-fixing fraudster (her boss, the defendant, has supposedly been marking the food prices at his grocery store higher than their list prices), but there’s also evidence that the Fraud Agency’s examination of the grocery store did not make any conclusive findings, and my client isn’t the most credible persona. There are a lot of factors to consider.

2:05pm-COB – Complaint Drafting

We now have the night to do our homework, which is to draft a complaint to send to our Senior Attorneys and opposing counsel by 8am the next morning. Naturally, I decide to do every other possible errand before sitting down to write the complaint (diagnosis: aversion bias), and it takes longer than I expect, not least because of formatting (I hate you, Microsoft Word!). But more on that later.