June 10, 2011
Imagination and identification
Posted by Gillian Hadfield

I agree completely with Claire that a) we can do less doctrine in first year contracts and b) a key goal is to get students to not leave so much of their own experiences and pre-law way of seeing the world at the door.  And she's right that the main goal is to get them thinking about what a client is trying to accomplish--and what other parties are trying to accomplish--and to use that as the framework for analysis.  That's one reason I like to give students the fact scenario for their first two assignments on day one of the course.  To emphasize that they want to start thinking about this problem like any person would.  And because before they are clouded with doctrine, they connect with a much wider range of considerations. We are of course training them to be able to apply legal filters to sort issues in ways non-lawyers don't--but I find it really helps for them to see how their analysis of the problem shifts as they start to learn some rules.  This also gives them some additional motivation in the course as they can see what they are learning.  As for thinking about client goals, this is what I emphasize in the explicit teaching of judgment as a framework.  Judgment for a lawyer means making choices about what to focus on, what alternative theories of the case to go with, which facts to emphasize , which to downplay--all within the context of achieving goals.  Hence my students learn that it's poor judgment to focus on an issue that gets the client $50 (breach of a low-value term--however nifty the theory is or however great an application of the parol evidence rule...) when there's another strategy that secures $50,000.  Or to focus on a strategy that depends on an argument that faces killer counterarguments.  I really felt like I had done my job a few years ago when at least half of the final exams dealing with the fact scenario involving mortgages, refinancing pressure and a horse farm started out with a few notes by the student under the heading "What does Maggie want?"  And a sizeable number then sketched 4 or 5 possible strategies/theories of her situation.  I don't grade that stuff but it tells me right up front that the stuff I do grade--what issues did they identify in their outline and how well; what issue did they choose as important; how well did they execute detailed analysis of that issue--was done within a framework that gave them a running start out of the gates.

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