Tuesday, August 09, 2011

The Importance of (Teaching) Fact Investigation

1. Interview with Erwin Chemerinsky, Dean, University of  California Irvine School of Law, Top-Law-Schools.com (20??), at http://www.top-law-schools.com/erwin-chemerinsky-interview.html:


TLS: How exactly do you plan to go about creating a new model for legal education? In other words, UCI's website says that it plans to "build a new school that is relevant to law practice and legal scholarship in the 21st century and that pushes the frontiers of the profession", and I am curious how exactly you plan to do that?
My central vision for the law school is that it must be oriented towards preparing law students for practice at the highest levels of the profession. This involves both a heavy emphasis on skills and practical experience, and at the same time, a strong interdisciplinary focus.
For example, we have designed a first year curriculum that is innovative and I think achieves these goals. There will be a year long course on lawyering skills, three units each semester. It will focus on teaching skills such as negotiation, interviewing, and fact investigation, as well as writing and research.
  • Erwin Chemerinsky, Why Not Clinical Education?, 16 Clinical Law Review 35, 35-36 (2009): “There is a growing recognition that law schools must do a better job of preparing students for the practice of law.  …My own ideal would be a model where the first year of law school taught basic legal skills, such as through a lawyering skills class. In addition to legal writing and research, students should learn skills that all lawyers use, such as negotiation, interviewing, and fact investigation skills. … In 2007, I was appointed as dean of a new law school at the University of California, Irvine (UCI). From the outset, I said that our core mission should be preparing students for the practice of law at the highest levels of the profession. … There is a second, more subtle problem with expanding clinical education in law schools: law faculties that are ever more removed from the practice of law. Judge Harry Edwards wrote of this in a powerful article almost twenty years ago.[FN6]My sense is that this has increased since then. The emphasis on inter-disciplinary study, which I applaud, means more law professors with a Ph.D. as well as a law degree, but with no practice experience. My sense is that over the thirty years that I have been a law professor there has been a trend against law professors engaged in legal practice. An ever smaller number of law faculty are actively involved in briefing and arguing cases or handling transactions. …”

2. David Binder & Paul Bergman, FACT INVESTIGATION: FROM HYPOTHESIS TO PROOF xvii (1984) (“[M]any students may be excused for graduating from law school thinking that facts are like starving trout, ready to be reeled in at the drop of a question or two. [par.] Experienced litigators, by contrast, tend to have far fewer misconceptions about the ease of gathering evidence to prove facts.”)


3. Jerome Frank, A Plea for Lawyer-Schools, 56 Yale L.J. 1303, 1303,303-1307 (1947):

American legal education went badly wrong some seventy years ago when it was seduced by a brilliant neurotic. I refer to the well-known founder of the so-called case system, Christopher Columbus Langdell. I call him a neurotic advisedly. He was a cloistered, bookish man, and bookish, too, in a narrow sense. In his student days at Harvard Law School, he haunted the library, poring over the Year Books; he is said to have expressed regrets that he had not lived in the time of the Plantagenets. ...

[Langdell's] pedagogic theory reflected the man. The experience of the lawyer in his office, with clients, and in the court-room with judges and juries, were, to Langdell, improper materials for the teacher and his student. ...
...
This philosophy of legal education was that of a man who cherished “inaccessible retirement.” Inaccessibility, a nostalgia for the forgotten past, devotion to the hush and quiet of a library, exclusion from consideration of the all-too-human clashes of personalities in law office and courtroom, the building of a pseudo-scientific system based solely upon book-materials--of these Langdell compounded the Langdell method.

The neurotic escapist character of Langdell stamped itself on the educational programs of our leading law schools. As a consequence, until a short time ago, most of the teachers in those schools either had little or no experience in active legal practice or, more important, if they had, yet when they withdrew from practice to teaching, they succumbed to an atmosphere in which the memories of practice became shadowy and unreal. The Langdell spirit choked legal education.
...

“Law in action” was a happy phrase. It contained, to be sure, that miserably ambiguous word “law.” Yet it was a pointer or guidepost; it seemed to indicate a new direction. But what university law school has followed the pointer? The phrase “law in action” has remained a phrase; at any rate, so far as legal pedagogy is concerned, the function of the phrase, psychologically, has been to substitute a new verbal formula for revised conduct. ...
...

You will note that I have emphasized trials and trial courts. In that respect, I differ from most law teachers. With a very few notable exceptions, the kind of so-called “law” taught by most professors in the schools consists of deductions from upper-court opinions. The schools, generally speaking, are upper-court law schools. But upper courts, courts of the sort in which I sit, are relatively unimportant for most clients. Why? Because the overwhelming majority of lawsuits are never appealed, and, in most of the small minority which are appealed, the appellate courts accept the facts as “found” by the trial court.

This brings me to the transcendent importance of the facts of cases. A legal rule, principle or standard, says merely this: “If the facts are thus and so, these are the legal consequences.” In a lawsuit, any particular rule, then, should be applied only if the facts invoking that rule's application are found to exist. If you, as a lawyer, assert that a given rule should govern your client's case, you will therefore fail, you will lose your suit, unless either the opposing lawyer concedes that those are the facts, (which he seldom does), or you persuade the trial court (a jury or a trial judge sitting without a jury) that those are the facts.

Now the actual facts in a suit do not walk into the courtroom. For they are past events, events which occurred before the suit began. The trial judge or jury, in most cases (i. e., those in which the facts are disputed) can usually learn about those past facts in but one way--through the court-room narratives of witnesses. The witnesses, being human, may make mistakes in their original observation of the facts, in their memories of what they thus observed, or at the trial in their reports of their memories. Some witnesses deliberately lie. Many others are biased, and, because of bias, unconsciously distort their stories. The trial judge or juries, who are themselves merely fallible human witnesses of the witnesses, must guess which, if any, of the witnesses accurately testify about the actual past facts.

A guess it must be, since there exist no mechanical instruments for weighing evidence or for determining the honesty and accuracy of the respective witnesses. We have not yet perfected a foolproof lie detector; we certainly now have no detector of the unconscious distortions of prejudiced but honest witnesses; and almost surely we will never have a contrivance for correcting a witness' original mistaken observation of the facts.

Never forget that courts do business at retail, not wholesale. All decisions are specific decisions in specific suits. In advising a client of his rights and duties, a lawyer is attempting to predict, to guess, what decision will be rendered in a specific bit of litigation. Often that requires him, before any suit is begun or even threatened, to guess whether, should litigation arise, there will be a dispute about the facts, and, if so, whether conflicting testimony will be introduced at the trial, and what trial judge or jury will try the case, and what will be the reaction of that as yet unknown trial judge or jury to that as yet unknown testimony.

Because, fixing their attention on upper courts, they neglect that crucial aspect of court-house government, many leading law teachers do their maximum worst in gravely miseducating their students. Repeatedly they assert that clear and precise legal rules usually prevent litigation, and imply that the difficulty of predicting decisions stems largely from uncertainty in or about the rules. That amounts to saying that if all the legal rules were settled and precise, or if parties to controversies always could agree on the pertinent rules, there would be little or no litigation. That is pure, unadulterated tosh. In most suits, no disagreement arises about the rules, and the disputes relate solely to the facts. Decisions in such suits, says many a professor, quoting Cardozo, leave “jurisprudence ... untouched.” That is true, provided you so conceive of “jurisprudence” that it stays aloof from the affairs of ordinary men. But such a decision often means death or imprisonment or poverty or a ruined life to some mere mortal who, in his benighted ignorance, has more regard for his own welfare than for the aesthetic delights of pure “jurisprudence.”

  As you will see in a moment, I am not advocating a plan for legal education which will produce mere legal technicians. It is imperative that lawyers be made who are considerably more than that. That “more” is alien to the Langdell spirit. That spirit, I grant you, is somewhat weakened. The undiluted Langdell principles are nowhere in good repute today. But they are still the basic ingredient of legal pedagogy, so that, whatever else is mixed with them, the dominant flavor is still Langdellian. Our leading law schools are still library-law schools, book-law schools. They are not, as they should be, lawyer-schools.

3. William Twining, Taking Facts Seriously, in RETHINKING EVIDENCE: EXPLORATORY ESSAYS 12, 23 (1990).


4. Tom Cobb and Sarah Kaltsounis, Real Collaborative Context: Opinion Writing and the Appellate Process, 5 J. ALWD 156, at 173 (2008):

Factual problem-solving is an area that most law schools do not emphasize but which offers tremendous possibilities for context-rich collaboration and for helping students understand important aspects of the legal system. For example, an evidence or factual investigation course could ask students to play the role of jurors and to analyze and evaluate complex chains of inference that flow from a body of evidence.48 Students could then play the role of jurors to get a better understanding of how groups of laypersons work together to make sense of a set of facts with multiple possible inferences. Students could also experiment with innovative collaborative problem solving techniques -- for example using charts or other visualizations to facilitate collaborative thinking about complex evidence networks -- that might have applications in real court rooms.49 Factual problem-solving can also take place from an investigator's standpoint, and students can work together to plan an investigation that will uncover the facts necessary to prove a particular legal standard. At a recent conference about the visualization of evidence in legal settings attended by one of the authors,50 a current U.S. Attorney expressed his wish that law schools would help develop techniques to facilitate collaborative collection and analysis of evidence in complex criminal cases.


N49
See Peter Tillers & David [Schum], A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991).


n50
See Peter Tillers, Introduction: Visualizing Evidence and Inference in Legal Settings, 6 Law, Probability & Risk 1 (2007) (introducing special issue of journal publishing conference proceedings addressing this topic).


5. Bernard Robertson & G.A. Vignaux, Taking Fact Analysis Seriously,  91 Mich. L. Rev. 1442 (1993).


6. Roger Park & Michael Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 46 B.C. L. Rev 949, 995 (2006):

Another thrust of the "New Evidence Scholarship" is concerned with inference and decision making in litigation, with the problem of processing evidence and drawing inferences from it in order to prepare for trial, to try cases, and to decide them. It seeks to develop theories of inference in the litigation context.224 This area of scholarship is concerned with the problem of how lawyers can organize the mass of evidence in a case in a meaningful and effective way to be persuasive to factfinders. How are lawyers to sort through the maze of evidence to determine which propositions that need to be proved are supported by what evidence, in a complex interconnected hierarchy of raw facts, intermediate inferences, and ultimate conclusions?

n224 William Twining, The New Evidence Scholarship, 13 CARDOZO L. REV. 295, 295 (1991). For a leading example, See generally Peter Tillers & David Schum, A Theory of Preliminary Fact Investigation, 24 U.C. DAVIS L. REV. 931 (1991).

7. Robert Rubinson,
Mapping the World: Facts and Meaning in Adjudication and Mediation, 63 Me. L. Rev. 61, 74 (2010):

It is also commonplace for advocates and, albeit rarely, scholars,77 to note that the bulk of the day-to-day work of an advocate is "fact investigation," not legal research. Mauet puts it like this: "Most cases are decided by facts, not law . . . . [L]itigators spend much of their time identifying and acquiring admissible evidence . . . that refutes the other side's contentions."78

n77 For a rare rigorous scholarly treatment of fact investigation, see Tillers & Schum, supra note 73.

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