Transcript TITLE Ellie Margolis and Susan DeJarnatt

Building a Better LRW Program:
The Discipline Evolves
Ellie Margolis and Susan DeJarnatt
Overview
• Fully integrating research and writing
• Teaching through the problems
• Grading only the final project
• Reusing assignments
Overview: Semester at a Glance
Class 1
Class 2
Orientation
Three classes
Dis: intro,syllab, course
hierarchy of law
use sample memo
handout-lib map, problem
Dis: intro to research
bring in PaCSA, Atl. Digest, Rptr
go thru plan
Overview of Persel, bky
Week 1
Prelim RR due
disc. Memo, citation
handout--cite #1
Disc. Paradigm for Memo 1
citation
exch. Cite #1
Return prelim RR and discuss remaining
research
Week 2
Final RR due
disc. Shepards
bring in shep for Brightful and Faish
QP exercise
Review RR
Q&A
Week 3
Memo One Due
Refine issue for Rvd Memo
Do conference schedule
Presentation exercise
no class-reading
Week 4
conferences
No Class–conferences
Rev. Memo RR due distribute Cite #2,
Organization of analysis
Case synthesis–charts
Week 5
No class–conferences
Analysis/counteranalysis
Return rev. Memo RR, cite #2
Week 6
Facts
Q&A
Revised Memo due
Presentation exercise?
Distribute Final Memo
Week 7
discuss research strategy
descriptive vs. probative
Review descriptive vs. probative,
refine issue
Week 8
Jamal synthesis exercise
Draft QP and cite list due
statute exercise
Week 9
Return and discuss cite list
Case exercise
conf sign up
Class on structure
Return and discuss Rev’d memos
Week 10
Conferences
Q&A on Memo 3
Drafts due
Exam taking
Week 11
conferences
no class
conferences
no class
conferences
Week 12
conferences
Optional session with Kathy
conferences
Week 13
Q&A
Q&A
Week 14
Final Memo due, course evaluations
Week/Dates
Total Integration of Research and
Writing
• Extension of Process Model
• Real-World Context
• Consistent with Learning Theory
• No Treasure Hunt Assignments
• No Closed-Universe Memo or Brief
Assignments
Sample Assignment
I have a new research assignment for you. I am attaching the transcript of
an interview I had with Jackie Jones, a new client. She wants to sue her
employer, Gilman & Peters, for sexual harassment and I think she has a
potentially good case that raises some interesting issues.
I want you to research the law for a memorandum discussing whether
Gilman & Peters has violated those federal statutes which prohibit sex
discrimination in employment. Specifically, I want you to explore
whether Jones' facts make out a prima facie case of sexual harassment
based on a "hostile work environment" theory. This is a potentially
complicated case and I have assigned other clerks to research other
potential claims and theories of relief. I want you to limit your research
to this one theory. I want you to focus first on whether this kind of
conduct even meets the requirements for sex discrimination. We don’t
know enough yet on how the conduct affected Jones specifically. Wait to
address that until I get you more information.
This is a complex area of the law and sometimes the indexes to the
research tools don't place things in categories that make sense. This is an
area where secondary sources will be particularly helpful.
Sample Assignment (2)
(continuation of sample assignment…)
Epstein: Please sit down Ms. Jones. I understand you are interested in suing your employer,
please tell me more.
Jones:
Yes. I'm at my wit's end and I want to see if I can sue my employer for sexual harassment.
I've been trying to put up with it, but I was just passed up for promotion and I think it's
related to the harassment. If things don't change I'm going to have to quit.
Epstein: OK, let's start at the beginning. Tell me a little about your employer and your specific job.
Jones:
I work for Gilman & Peters, a graphic design firm in Center City. I think there are about 35
employees. I'm a designer. I work primarily with computer graphics, designing
promotional materials for our corporate clients. I've been working there for three years. I
really like the work, and I used to like the people, except that my supervisor, Rick
Edwards, has been harassing me and everyone else has joined in.
Epstein: OK, then tell me about the harassment, be very specific about what happened, when it
started, etc.
Jones:
Well, it all started about a year and a half ago, when Rick got hired as the supervisor of our
unit. Oh, I should back up and explain that because the company does a lot of Web
design, all of the office computers have direct internet access through a network. One
day, Rick called me and a couple other co-workers into his office to show us “something he
found.” We went in and he showed us naked pictures of movie stars - Brad Pitt, Jennifer
Lopez, and some others. Everyone was laughing and joking, but I didn't think it was
appropriate to be looking at naked pictures at work and said so.
Sample Lesson Plan
• The Problem
– Go over fact pattern, make sure everyone
understands the issue.
– Discuss what they think and write key words on the
board.
– Make sure everyone is focused on what they are
looking for (i.e., federal law, statute, cases, etc.)
Sample Lesson Plan (2)
• Parties
– Who are the potential parties?
• Jones and G&P
– How would you refer to them descriptively without
proper names?
• Employee/employer
– Are they parties yet?
• Why or why not
Sample Lesson Plan (3)
• Issue
– What is the legal issue you have been asked to
research?
• Jurisdiction
– Where did the events occur?
– Why is that important
– What does it mean for what law you are looking for?
– (go over fed. court system, weight of authority)
Finding the Law: Statutes and
Secondary Sources
Regardless of what research source you start
with, you will need an idea of what you are looking
for. What descriptive terms will you use?
BRAINSTORM FOR ALL POSSIBLE USEFUL
TERMS
OK, now, where to look?
– Secondary Sources – Hand out CHART
– Treatises/Specialized Materials – go over from
CHART
– Statutes Annotated – Hand out statutory research
steps and go over
Sample Research Questions (2)
1. Statute
A. Please give the complete proper citation to the
federal statute that governs this case. (Hint: ALWD
Manual Rule 14.2.) Note that although the
ALWD manual tells you to cite to the “official”
code (rule 14.1(b)), for this class please cite to
USCA or USCS because Temple does not have
the USC (the “official” code) up to date.
B. How did you find the statute? (e.g., index to the
statute, encyclopedia, treatise, law review article).
What descriptive words did you use to find it?
Sample Research Questions (4)
2. Please list two relevant cases decided by the
United States Court of Appeals for the Third
Circuit and one relevant United States District
Court case in proper citation form. These do
not have to be ones you know you will cite in
your memorandum, just ones that at this point
you think are relevant. (Hint: see fast format
on page 63 of ALWD. Note: for United
States Courts of Appeals, ignore
subsequent history, which is everything
after “rev’d”. See also Appendix 4 for the
proper court abbreviation for the
parenthetical).
Teaching Through the Problems
• Deeper implementation of the process model
• Practice the discourse community
• Develop a greater sense of the audience
• Learn through modeling and collaboration
Outline
Prong 1
• Conclusion
• Rule
• Explanation and application / Counteranalysis
Prong 2
• Conclusion
• Rule
• Explanation and application / Counteranalysis
Prong 3
• Conclusion
• Rule
• Explanation and application / Counteranalysis
Detailed Example
• Conclusion
– satisfies prong 2 because injuries have caused
permanent disability that will keep her from
performing non-sedentary work like that she did all
her adult life
• Rule
– Second prong requires debtor to show additional
circumstances that show current inability to pay is
likely to persist for a significant portion of the loan
repayment period—Faish
Detailed Example (2)
• Explanation
– Faish:
recognize continuing benefit of education, must
show dire straits will continue
– Brightful: total incapacity not within debtor’s control,
certainty of hopelessness
If debtor has useful education or work history,
she fails (e.g. Brightful was legal sec’y, Vinci—
lawyer, Greco-chiropractor)
– where serious, permanent medical problems preclude work,
debtor will pass:
•
•
•
•
Hoyle—depression, lousy training, chronic back pain
Mayer—mental illness
Rivera—asthma, mental health issues
Williams—kidney loss
Detailed Example (3)
• Application
– Persel has limited education, serious impediments
preclude non-sedentary work, no choice in the
matter
– Might pass if really bad and no prospects—Queen,
Carter, Young
[Length of repayment period—20 years from 1995]
– Persel will not improve, permanent injuries, child’s
tuition costs will go up, education precludes
sedentary work, learning disabilities preclude
retraining
Mr. Ocosta
Mrs. Ocosta
Mr. Gladstein
Mrs. Gladstein
genetic father, intent
genetic mother, intent
holding out, intent
birth, intent
marriage to mom
marriage to mom, surg.
conception
Johnson–intent at
conception–w/o Os no
Eli, w Os maybe Eli later
see Mr.
Johnson–intent to have a
child–Os only intended
to create zygote, no
intent to use, no Eli
today without G’s intent
see Mr.
KM–any relevance? Not
a donor so should not
apply
ditto
KM–intent not the test if
no surrogacy; Instead
here should look at from
perspective of recipients
in 7613
ditto
PR–very genetics view
of intent, correct view of
Johnson
mistake to be corrected,
Eli young enough to fix
the error
PR not correct
interpretation, really a
genetics rule which
Johnson rejected–if
moment of conception
always wins, then
Belsito, not Johnson is
right
Nicholas H. should not
apply bec not a situation
where no other man
making a claim
ditto
existing relationship
outweighs genetics
Ben is only recog father,
Jose only alleged, no
right to blood tests
Susan B. can’t block
claim via 7541(e)(3) or
7613
Susan B.
Susan B.–gestation
crucial, not clear intent
should apply–if not, then
what???
Susan B.
Grading
• Grade only the final project
• Consistent
Grading
Policy with Process Model
To pass• the
course, a more
studenteffective
must complete
each assignment to
Promotes
learning
the professor’s satisfaction, although we grade only the final
assignment of the semester. The [early assignments] will not bear a
• Synergy with other aspects of program
letter or number grade when returned to you, but will be returned
with detailed commentary on your work. You may have to rewrite
• More
the professor
any written
work freedom
that is not for
considered
to be of passing quality when
first submitted, and any rewriting must be done to an acceptable
standard,
and in the prescribed
• Rewards
students time.
for what they learn rather
than how they learn
• Makes LRW like other law school courses
Sample Critique of First Draft
Sample Critique of First Draft
You have made a start with this draft, though it
needs a lot of development to address all of the
issues involved in the case. Your broad
organization appears sound, but you need to work
on the smaller-scale organization within sections.
I’m not sure you have a clear understanding of the
fact/opinion test (though it might just be the way
you presented it), so we should go over that in the
conference. It looks like you still have a fair
amount of thinking to do about status and
standard of care.
SampleWho
Critique
of First Draft
considers it?
(2)
Why does the
court need to do 1.
this? What is the
rule involved? 2.
Courts always take into consideration all of the applicable statutes, cases, rules, etc. This is something a legal reader already
knows. Your sentence here doesn’t help the reader understand anything about Kramer’s claim. That is what the roadmap should
do.
Who considers it? Avoid passive construction like this. It is vague and harder to follow than a more active, direct approach.
Think about presenting the libel claim from the perspective of what the plaintiff must do, rather than the decision the court must
make.
Where does this rule come from? What is the reason
the court separated plaintiffs into different categories?
3.
Why does the court need to do this? What is the rule involved? In the roadmap, instead of explaining how to figure out
something, explain what that something is that needs to be figured out.
4.
Where does this rule come from? What is the reason the court separated plaintiffs into different categories? What legal principle
led the court to do this, and how do the status distinctions accomplish the court’s purpose? This is an unusual rule. Explain where
it comes from.
5.
This is really a continuation of the second element, rather than the third. There is no separate analysis that goes into deciding
what the standard of care should be. Once the plaintiff’s status is established, the standard automatically follows (i.e., the
standard for a public official is ALWAYS actual malice, there is nothing to analyze). This should be part of your explanation of the
second element. The third is really just whether the applicable standard has been breached.
6.
Your CREXAC structure is a little jumbled here. You apply one component of the statute–privilege–but just explain the others and
apply later. Be consistent, either apply each term as you go, or save them all until after. Decide what makes the most sense to
you.
7.
So, how do you know when this part is met?
much greater interpretation. People might disagree on what kind of statement exposes someone to hatred, etc. You need a little
more explanation of this part of the statute.
8.
Let’s talk in the conference about how you present this test. First, you should present the test as a whole before breaking it into
its parts (just like at the beginning, you present the libel claim as a whole first, and at the beginning of the “statement” section you
present that issue as a whole). Second, I’m not quite sure you understand the whole test, or at least you aren’t presenting it in the
clearest or easiest way.
Your CREXAC
structure is a little
jumbled here.
Unlike “fixed representation to the eye,” the “harm” part of the statute is open to
Let’s talk in the conference about
9. This
is a confusing
how you present
this
test. way of understanding the test (not your fault, the court uses confusing language). It is very circular to prove a
statement is defamatory by showing that it is defamatory. What is the court really looking for in this prong of the test? Have you
looked at how the other cases talk about it?
10. This isn’t the second step, it is the whole test. The whole purpose of the Baker test is whether the statement conveys facts.
What, specifically does the court look for? Let’s go over this in the conference.
Sample of Critique of Final,
Ungraded Draft
MEMORANDUM EDITING CHECKLIST - Jones Memo
A. QUESTION PRESENTED
1. Does your question actually ask about the legal issue(s) you address in
the memo? (i.e., does the answer to the question resolve the client’s
situation?) 
2. Unless the question presented is solely a question of law, have you
included key facts? +
3. Have you included the jurisdiction, or controlling statute if appropriate? 
4. Have you checked for legal conclusions? 
5. Is your question clear, concise and not awkward. +
B. BRIEF ANSWER
1.
2.
3.
Is your first sentence a quick, bottom line answer to the question presented? 
Have you summarized the law and briefly applied it to the facts of your problem? Rather than summarize, you present the full test, but then you only
apply part of it. It feels like the BA stops abruptly before you are finished.
Do the QP and BA “track” in terms of key facts and legal rules? 
C. FACTS
1.
2.
3.
4.
5.
6.
7.
Have you identified your client and briefly stated the legal problem? 
Have you included the necessary procedural facts, if applicable? n/a
Have you included all the facts that you use in your Discussion? +
Have you included enough background facts to provide an appropriate context for the legal problem? +
Have you omitted distracting, irrelevant facts? 
Did you arrange the facts in an organization that is easy to understand, such as chronologically, topically, or chronological within a topic? +
Does the section include only fact and not analysis, arguments, or conclusions? 
D. DISCUSSION
1.
2.
3.
4.
Did you begin with a roadmap section of an appropriate length? 
Did the Roadmap section begin with your fact-specific conclusion on the ultimate issue in the case? Did it also include a statement of the applicable legal rule(s) and any relevant
factors, along with your legal conclusions and rationale? (There should be no surprises in the Discussion after the roadmap section) 
Have you organized your Discussion logically? [MACRO ORGANIZATION]
a) Have you used headings as signposts to alert reader to your major points? Do the headings track the organization of your Roadmap? 
b) Did you consciously choose the most logical order for your major points? 
c) Did you break down each major point into the “subpoints” you need to prove the major point? 
d) Does each section begin with a clear, fact-specific conclusion on the point raised in the heading? 
Within each major point did you: [MICRO ORGANIZATION]
a)
Follow the CREXAC paradigm–
–
State your conclusion (see point 3d) 
Repeat Use of Assignments
9/14/05
A. Braugher
Interview–Ben and Dina Gladstein
add–5024 Morris Ave., Pac. Pal. 310-111-2030
M. 1995 in LA, 1st marriage for both
Husb.--screenwriter, occ. director; now has development contract w/ Fox tv netwrk
Wife–landscape designer, has own business
Med hist--Dina now 43; prem. menopause; Ben--sterile due to testicular cancer, disc.
1997
attempted artificial insem. several times---no luck
Went to Dr. Lora Nett (Center for Reproductive Health, L.A.) in 2001. In vitro
fert. program. Tried 2 cycles of implantation, no success. Dr. Nett advised
that 8 eggs were fertilized (using donor sperm), 4 implanted each cycle. Nothing
took.
Looked into adoption but really wanted some genetic connection. Went back to
Center in 2003. Got standard hormone regimen, donor sperm; Nett told Dina 12
eggs produced, 4 implanted in Nov. 2003. Successful pregnancy. Eli born
7/20/04.
Repeat Use of Assignments (2)
Eli healthy 1 yr old. Just started walking and talking. Good vocabulary--Mama, Papa,
dog, cat, ball. Likes trucks, trains, animals. Has in home nanny 3 days/wk. Dina on
reduced work schedule, home 2 days.
Very shocked about Dr. Nett, always thought so well of her. After so many yrs of
trying, finally have a family. Difficult to believe such a mistake could happen. Found
out when the Ocostas’ lawyer (Laura Ballard) started calling them in June 2005. They
spoke to Sophia Epperson, a nurse in Nett’s office, who wouldn’t confirm, just referred
them to Nett’s lawyer, Mark Moore. Petition filed August 7, 2005.
Don’t want to know if there was a problem with the embryos. Eli is their baby, they
want him no matter what.
End Presentation