By: Paula Schaefer, Associate Professor, University of Tennessee College of Law
As I planned to teach pre-trial litigation for the first time in 2009, I wanted my case to include electronic-discovery (e-discovery). My research quickly revealed that the pre-packaged pre-trial litigation cases involved car accidents and simple contract disputes. No ESI (electronically stored information) was included, so it would be impossible to conduct e-discovery in these cases. Undeterred, I mused that I could make my own course materials from the contents of my overflowing email inbox.
From that idea, I developed a plan for a two-semester simulation. I offered a group of law students course credit (as an independent study) to email one another, following a loose script, to create a business dispute among their assigned characters. Their dispute would become the lawsuit in my pre-trial litigation class the following semester. In that course, the independent study students would play the clients and the witnesses, and the pre-trial litigation students would be their lawyers.
The result was not just ESI, but also a realistic case that benefited both groups of students. The article about my experience is tentatively titled Legal Dispute Simulation Meets Pre-Trial Litigation Simulation: An Integrated Approach to Teaching E-Discovery Doctrine, Practice Skills, and Professionalism, available at http://ssrn.com/abstract=1676976.
Wait? You’re Giving Law Students Credit for Writing Email?
This is often the first question about the simulation. To receive course credit (one hour total credit for two semesters of work), students do much more than write email. They develop knowledge and skills they will use as lawyers. In the fall semester they negotiate agreements, draft contracts, and communicate (extensively) in writing in email, blogs, and more. In the spring semester, they participate in litigation as clients and witnesses where they have the opportunity to observe various lawyering styles and gain empathy for the clients and witnesses they will encounter in practice. Further, they learn something about the substantive law of the underlying dispute and gain knowledge about e-discovery.
Doctrine, Skills, and Professionalism in Context
As they might in a doctrinal course (like civil procedure) addressing e-discovery, my pre-trial litigation students read and discuss e-discovery authorities on preservation, cooperation in e-discovery planning, document review and production, and discovery disputes. By adding the simulation to the mix, the pre-trial litigation students are given the opportunity to develop skills in all of these areas of e-discovery practice. In the course of a semester, they advise their clients on preservation issues, plan for e-discovery with their opponents in a 26(f) conference, and use technology to review thousands of electronic documents. They go on to produce responsive documents in an electronic format and prepare privilege logs. And when the production is complete, they negotiate with their opponents to work out lingering discovery disputes.
At each step of the litigation, they encounter various professionalism challenges. With parties to the litigation walking the halls of the law school, they gain an understanding of their professional conduct obligation to not talk to a represented party. When they experience the temptation to withhold bad documents from their opponents, we discuss the consequences of such misconduct. They face and address the challenge of cooperation (with opposing counsel) that is so essential to e-discovery practice. It is one thing to talk about these issues, but it is another to experience them in the context of a realistic case.
Can this Work Outside of E-Discovery?
Though I developed my simulation with e-discovery in mind, it could work in many doctrinal and skills classes. The simulation creates a complex business dispute with numerous claims, making it the perfect go-to example in a business torts class. The evidentiary issues generated could be the subject of an evidence class. The simulation characters could also make an appearance in skills classes like negotiation, contract drafting, trial practice, and transactional lawyering (like the University of Tennessee’s capstone Representing Enterprises). I have plans to invite another professor’s mediation students to my pre-trial litigation class next semester to see if they can mediate a resolution to the case prior to trial.
My loose script for simulation characters (a link is provided in my article on SSRN) could be used by law students anywhere to create a new legal dispute. Or a professor could easily create a new script involving issues he or she is interested in exploring in a doctrinal or skills class. From my experience, I believe such simulations are worth the effort. These simulations can transform an ordinary class into something more realistic. And with that realism comes an opportunity for law students to make the transition to lawyers.
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