Monday, August 23, 2004

Law School Nightmare

You are having a nightmare. You are dreaming that you are you are taking a law school exam. You are told to identify and discuss in depth just several of the many issues presented by the lengthy set of facts found below. Your have lots of time -- two hours -- to write your answer. Do so.

Exam Question

David Defendant is indicted for robbery and sexual assault (rape). This criminal case proceeds to trial in a court of the State of Blackacre.

Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At trial the prosecution opens and closes its case-in-chief with the testimony of Pattie Parsons. Pattie testifies that David robbed and raped her in her apartment on April 1, 2004.

After Pattie's testimony, defense counsel makes the following opening statement:

Members of the jury, the evidence you have seen and that you will see shows one of two things: either Pattie Parsons agreed to have sexual intercourse with David Defendant and she agreed to let poor David take the money that she now claims David stole; or Pattie's alleged encounter with David on April 1, 2004, is imaginary rather than real. In either case, you must free David. Thank you.
Defense counsel then offers the following testimony by Astral Astronomer:
I am an astrophysicist. I am also a volunteer counselor for the Amber City chapter of the Young Women's Religious Association, YWRA. My job at YWRA is to provide faith-based personal counseling to any member of our YWRA chapter who wishes to consult me. I am not a member of the clergy and my job is not to provide spiritual advice. But my religious beliefs are the motivation for my work as a volunteer YWRA counselor.

I have been a counselor with YWRA for 10 years. I have no university training in counseling. Counseling is a craft rather than a science. I learned counseling on the job. I attended numerous YWRA training sessions over the years. These training sessions are conducted by fellow YWRA counseling volunteers. Indeed, no one actually “runs” these training sessions; they are a collaborative and cooperative effort: YWRA counselors train each other. Counselors in our chapter meet periodically – usually once a month – to discuss their cases. This is the way training has been done in our chapter for 50 years. Our chapter has offered counseling by volunteers for 50 years. And the training sessions have been part of the counseling program for 50 years. Thus, counseling skills have been passed down from generation to generation. And they have been honed by 50 years' collective experience. I am generally regarded as the best counselor in our YWRA chapter. Many of the people who have consulted me for advice and guidance have thanked me for my efforts to help them.

Pattie Parsons first came to see me in the evening of April 2, 2004. She didn't say anything about having been robbed and raped by David Defendant. She never did say anything to me about a rape or a robbery. But in later counseling sessions she did tell me that early in 2003 she had joined a small group that called itself Exalted Exultations. She told me that she first met David at about the same time; she said that David had joined the group shortly after she had.

As the counseling proceeded, Pattie described Exalted Exultations and its beliefs and its rituals. She said the 10 members of group spent most of their time on the streets. She also said that the group spent much of its time in chanting. Occasionally Pattie illustrated some of the chants for me. When she did this, she invariably fell into a trance-like state.

I have a lot of experience with quasi-religious cults and groups like Exalted Exultations. Groups of that sort prey on young women in this area. And Pattie's experience with Exalted Exultations is very similar to the sorts of experiences that other YWRA members have had with similar fringe cults in this area. When Pattie went into her trances, she effectively became a zombie. Her mind and soul were seeded with perverse thoughts. I don't know what happened on April 1, 2004. But I do know that the encounter that she described at the trial might well be an event that her zombie-like brain wanted or just imagined.

The prosecution vigorously objects to the proposed testimony by Astral Astronomer. Judge Wisdom responds, “We need to take a recess for an hour or two so that I can consider the admissibility of Astronomer's testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in two hours or less. Tell me if the proposed testimony by Astral Astronomer is admissible or inadmissible and tell me why. Make your memo clear. Make your memo concise. Dear Diligent, as you know, I've got a lot of cases on my calendar. I don't have either the time or the inclination to slog through either a jumbled memo or a long one. Are we on the same page?”

Please write the memorandum.


Postscript: Should legal education be reformed so that law students do not have to suffer the indignity of taking traditional exams? For example, instead of being required to answer exam questions in, say, two hours, should law students always be required to write research papers, briefs, or memos?
  • My experience is that the majority of law students prefer to take traditional exams rather than write research papers. But perhaps this attitude by the consumers of legal education is an insufficient reason for not shifting to testing methods that emphasize research and writing.