Mid-terms Matter

It’s mid-term season. While we all have elections on our minds, many of our students are thinking about mid-term exams. Mid-terms have become more popular as formative assessment in law schools increases. Mid-terms can be an effective, somewhat low-stakes experience that closely mirrors the experience of the final exam. That’s important because many of our first-year students have never faced the kind of exams we traditionally give in the law school setting. And research shows that students turn in better performances when they practice for high-stakes exams under similar conditions.

It’s possible that students don’t like the added stress that mid-terms bring, and it’s equally as possible that professors dislike the stress of delivering valuable but often hard-to-swallow feedback about their students’ performance.

Law schools, by design, are competitive. Therefore, assume that students will be using their mid-term results to judge themselves. This crucial time in a student’s first semester calls for evidence-based feedback.

Decades of research demonstrates that at least half of our students will become demotivated when faced with a disappointing result. That’s because they believe that just one exam is a judgment on their intelligence—how much they currently have and how much they can expect to have in the future. These students have what researchers call a fixed mindset. When these students ace their first exam, they go forward feeling confident in their performance and their ability to continue their success with the same amount of effort. When these students are not as successful on their first exam, they tend to believe that they just don’t have what it takes to be a high performer. They often disengage and under-perform because they believe the die has already been cast.

Fortunately, not all students see exam results the same way. For students with a growth mindset, the mid-term is not a judgment of what kind of law students they are, how intelligent they are, or how well they can expect to do in law school. The exam result is exactly what it’s meant to be—a way to gauge their current performance and rethink their learning strategies. These students believe that intelligence grows through effort and effective strategies. They will see your feedback, good or bad, as helpful information that will prepare them for a better performance on the final exam.

The good news is that students’ mindsets change based on the information they receive through teachers, coaches, and their environment. So what messages should faculty give students as they assess the mid-terms? Students should understand the purposes of taking a mid-term are to learn: (1) whether they are using the right strategies, (2) whether they have put forth enough effort, and (3) how they can change course in order to grow their intelligence before the final exam. Professors who share stories of their own struggles and their strategies to overcome them create a classroom where learning thrives. When professors show how they developed effective strategies in learning, they invite students to do the same. Students will more likely accept the feedback with gratitude and use the feedback in the way it was intended, to increase their learning and develop strategies for demonstrating their knowledge when the stakes are much higher.

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“Hum”s in the Classroom

Today I had the opportunity to learn from my students. I started my class with some commentary about the Project on Integrating Spirituality into Law And Politics (“PISLAP”) conference I attended last week at American University’s Washington College of Law–my alma mater. I told the students I learned much about cultivating a learning atmosphere that recognizes our shared humanity and cultivates learning by dialogue. As I began, though, a front row student pointed out that I had misspelled the word “blackboard” on the blackboard, by writing it as “blackboad.” Laughing at myself along with them, I explained this was a perfect way to begin–with humility.

The PISLAP conference, I told the students, was rich with dialogue about the use of humility for law professors, and the ways we can learn from our students and from other actors in the legal system and in higher education to best deliver a solid legal education that also values empathy and positive outcomes.

My very minor contribution at PISLAP, as I shared in class today, was the “notecard” system that another law teacher at another school generously shared with me. I give each student an index card on Day One of my Professional Responsibility class. Students turn in their cards with a note to me explaining what they want to do with their law degree, and one fact about themselves that might surprise us. It humanizes the bodies in the room and breaks down barriers to the rich dialogue that a law school classroom otherwise can thrive on. I share each student’s “note,” if they consent, sometime during the semester during class. Today we learned that one student can wiggle both ears independently as well as simultaneously, one has never lost a staring contest, and that same student wants to “help and serve others” after law school. That last one hit me hard. Our students are grappling with many challenges, and most of them are in law school for reasons that boil down to wanting to do something positive for this world and their fellow humans. Naming that in a Professional Responsibility classroom with the student who wrote it nodding in affirmation was a powerful moment. This is why we do what we do, or at least why I do what I do.

Later in today’s class, another “hum” word provided our closing theme. This one was harder. I shared a conflicts of interest anecdote from my own experience. Years ago, in private practice, I mistakenly missed spotting a potential conflict in the first instance, and had to resign from the case early in the representation as a result. I explained that although my staff “should” have discovered and screened out the conflict earlier, that I take ultimate responsibility as the lawyer–and that they should as well. I stressed that my primary regret was that the client had to find new counsel and deal with the mental stress of the turn of events.  I also shared that my secondary regret was my own humiliation. I felt terribly ashamed, and contrite, but it was appropriate that I dealt with those feelings and moved on. My humiliation]was a lesson in humility, and humility is a pretty decent North Star for lawyers. I urged my students to approach their careers and their law school studies with humility–it’s intrinsic to our Professional Responsibility.

How Can We Fix Legal System Failures to Properly Handle Sexual Offenses?

Over the past year, we have witnessed growing evidence of the massive failures of our legal system to deal properly with a rampant system in which powerful men sexually dominate others, especially women.

This post describes the nature, magnitude, and consequences of a long-term history of criminal and civil sexual offenses in the US and how the legal system has contributed to the denial of access to justice, enabling these offenses to be perpetuated.   This post suggests how law professors might use increasing awareness of these problems to ask students to reflect about how the legal system can fix these problems and what individual lawyers might do when representing clients in cases involving sexual offenses.

Massive Sexual Crime Wave

With publicity about gross violence perpetuated by powerful men like Harvey Weinstein, Roger Ailes, and Bill Cosby, among many others, there has been an increasing awareness of how pervasively they have been able to take sexual advantage with impunity.  There have been a stream of stories about such men in virtually all walks of life and of different political persuasions.  After the “dam burst,” with a series of  revelations about prominent men, it might have seemed as if all men “do it,” though that’s obviously not true.

The flow of credible allegations has unleashed a flood of stories by victims at every level of society about a wide variety of offenses committed by men, famous and not.  Most prominent have been the stories of Dr. Christine Blasey Ford and others who accused now-Justice Brett Kavanaugh of committing sexual offenses as a young man and lying now about his behavior back then.

These events have prompted many women to recall and describe offenses that happened to them a long time ago that they told few, if any, people, and often never reported to the police.  Washington Post columnist Monica Hesse wrote a poignant essay about the varied reasons that victims are afraid to tell people how they were harmed: “Dear Dads: Your Daughters Told Me about Their Assaults.  This Is Why They Never Told You.”

These personal stories are reflected in statistics about the problem.  According to the Rape, Abuse & Incest National Network, almost 400,000 Americans are sexually assaulted each year and a sexual assault occurs, on average, more than once every two minutes.  Most victims do not report their assaults.  Here’s an excerpt from the National Institute of Justice website.

The Bureau of Justice Statistics (BJS) reports that the majority of rapes and sexual assaults perpetrated against women and girls in the United States between 1992 and 2000 were not reported to the police.  Only 36 percent of rapes, 34 percent of attempted rapes, and 26 percent of sexual assaults were reported.  Reasons for not reporting assault vary among individuals, but one study identified the following as common:

  • Self-blame or guilt.
  • Shame, embarrassment, or desire to keep the assault a private matter.
  • Humiliation or fear of the perpetrator or other individual’s perceptions.
  • Fear of not being believed or of being accused of playing a role in the crime.
  • Lack of trust in the criminal justice system.

In the NIJ funded Sexual Assault Among Latinas Study (SALAS), it was found that victims did not commonly seek help from the criminal justice system, but did seek informal sources of help such as family and friends.  However, one third of the women included in the study did not report their victimization to anyone.

Washington Post reporter Andrew Van Dam summarized data about consequences of sexual offenses: “Less than 1% of Rapes Lead to Felony Convictions. At Least 89% of Victims Face Emotional and Physical Consequences.”  This article also stated, “The specter of false accusation looms large in the backlash chronicled by [Philip] Rucker and [Robert] Costa, but a 2009 review of research from around the world, based on credible sources, indicates only between 2 and 8 percent of all sexual assault reports were false.”

To summarize, there has been a massive crime wave for a very long time in which victims  are understandably terrified to report the crimes and virtually all offenders have escaped accountability and legal sanction.  Indeed, for survivors, participating in the legal system itself can become a form of re-victimization.

In a forthcoming book about how practitioners should help clients assess their interests and risks in litigation, Michaela Keet, Heather Heavin, and I describe litigation stress generally and particularly in cases of sexual offenses.  Based on their extensive research, here’s an excerpt from an early draft of the book:

Victims of sexual assault and sexual harassment may use civil litigation to achieve important goals, though the strains of the process can extract significant physical and emotional costs.  The emotional vulnerability of sexual assault and harassment victims can be exacerbated by the anxieties of litigation.  These parties often enter the litigation process with reduced feelings of safety, autonomy, and self-worth.  Many sexual assault victims engage in civil litigation as a response to a crisis, such as a nervous breakdown or suicide attempt.  The ordinary stress of litigation is magnified by the necessity of discussing traumatic events and possibility of facing the assailants in court.  Women who engage in sexual assault litigation often report poorer adjustment at work and at home.

Sexual harassment litigation may exacerbate or perpetuate symptoms developed as a result of the original harassment.  The physical symptoms related to sexual harassment may include gastrointestinal disturbances, jaw tightness and teeth grinding, nervousness, binge eating, headaches, inability to sleep, tiredness, nausea, loss of appetite, weight loss, and crying spells.  The emotional responses to harassment may include anger, fear, depression, anxiety, irritability, lowered self-esteem, feelings of humiliation and alienation, as well as a sense of helplessness and vulnerability.

Plaintiffs may experience the litigation itself as a “crisis event” and may not have the psychological and emotional resources or skills to manage it.  Because parties are coping with the original harassment, they may be ill-equipped to take on the added burden of litigation stress.  Participation in sexual harassment litigation is associated with higher levels of PTSD symptoms, as well as lower levels of life satisfaction.  Women currently undergoing sexual harassment litigation more often exhibit demoralization, anxious arousal, fear, and self-blame.

Considering the huge risks of litigation (including many risks not listed above), it is not surprising that many victims learn to bury and repress memories of the crimes.

Our legal system enables offenders to get off without punishment or even publicity.  Powerful men who commit these crimes use lawyers to draft binding pre-dispute arbitration clauses and non-disclosure agreements to muzzle the victims.  Typically, the offenders are rich and powerful and the victims are poor and weak, so they are easily intimidated.  In many of the recent cases, offenders have lost their employment and suffered damage to their reputations, but almost all have gotten off without criminal punishment and have retained their wealth.  Because many of the acts occurred long ago, they are barred by statutes of limitations.  In any case, it would be difficult to clearly prove many of these cases because the evidence is stale and witnesses may not be available or would be afraid to testify truthfully.  And most victims think that the risks of engaging the legal system would far outweigh the potential benefits.

The Damage Wrought by the Kavanaugh Confirmation Process

The process used to investigate the allegations against now-Justice Kavanaugh demonstrates and perpetuates the problems I just described.  Although it was a legislative, rather than litigation, process, supporters of Justice Kavanaugh created a false narrative using litigation concepts.  This not only completely discredited the process in his situation, but it also spread false ideas about the legal framework for handling allegations of sexual offenses.

Of course, people will read the preceding paragraph with our increasingly polarized partisan biases.  As you read the following analysis, try using the de-biasing technique of considering the alternative – what we often call role reversals.  If the Democrats were in power and used the same approach as the White House and Congress did in this situation, would your conclusion differ?  Would the Republicans complain as much or as more as the Democrats have – or would they consider the process to have been fair and legitimate?

Justice Kavanaugh and his supporters portrayed him as a victim of false accusations and a political conspiracy.  This is a remarkable narrative considering that he was credibly accused as a serious offender who falsely denied the claims.  Justice Kavanaugh’s defenders falsely claimed that there was no corroborating evidence.  They imply that the only relevant charge is whether he assaulted Dr. Blasey Ford and that corroboration is limited to eye-witness testimony.  In fact, there is a serious issue whether Justice Kavanaugh made false statements under oath at his confirmation hearing, and she provided numerous sworn statements of people who she had told in the past about these events, which is a form of corroboration.  The Kavanaugh defenders also imply that these allegations of sexual assault would be insufficient without corroboration, which is not necessarily true.

Part of the deception was caused by the misleading narrative that this process was like a criminal trial in which the accusers had the burden of proving Justice Kavanaugh’s guilt beyond a reasonable doubt.  In fact, it was a legislative proceeding to determine his fitness to be confirmed under the Senate’s Constitutional advise and consent responsibility.  Framed that way, the standard might be whether there would be sufficient doubt to deny the confirmation, which is not an entitlement of the president or nominee.  In other words, the proponents of the nomination reasonably should have the burden of proof beyond a reasonable doubt – the exact opposite of what Justice Kavanaugh’s supporters claimed.  In my view, even if there wasn’t certainty that the allegations against him were true, if there were reasonable doubts about his truthfulness or fitness, it would be wrong to confirm him.

If Justice Kavanaugh and his supporters really wanted to establish the truth and restore his reputation, they would have insisted on a thorough independent investigation.  The Judiciary Committee hearing and FBI supplemental investigation obviously were designed to be inadequate so that they could be used to justify the decision to confirm him.  The Republicans’ bad faith is demonstrated by their determination to plow through Justice Kavanaugh’s nomination in a rush, without necessary investigation, after having decided not to even consider President Obama’s nomination of Judge Merrick Garland.  Moreover, the FBI was instructed not to interview many people who claimed to have relevant evidence.  Obviously, this was not a fair or legitimate process.

Unfortunately, this process sends a signal to victims of sexual offenses that they have good reason to fear talking about or reporting offenses committed against them.  Doing so exposes them to the risk of losing their privacy, dignity, reputation, opportunities, and material resources.  They may be ignored or re-traumatized – and the perpetrators are likely to get off scot free anyway.

On the other hand, these episodes have encouraged many people to reflect on their own experiences of sexual victimization.  This may stimulate demands for improvement and mobilization by survivors (and their supporters) who are furious about their treatment and that of Justice Kavanaugh’s accusers.

A Teaching Moment

Regardless of one’s views about the Kavanaugh situation, it should be clear that there has been a massive, long-standing failure of our legal system to protect victims of sexual offenses and punish the offenders.

Our country needs to radically improve this system.  Of course, this is much easier said than done.  People in power who have benefitted from a system usually do not give up power and agree to change without a struggle.

Putting aside the major practical problem of how to coalesce the political will to adopt and implement changes, it would not be easy to design a new system, considering the complexity of the problems and potentially competing legitimate interests.

Law professors could use this situation to ask students to identify the interests involved and how they should be addressed in designing a fair and legitimate system for encouraging survivors to get protection and compensation and for deterring and punishing sexual offenses.  (For some ideas, see this article listing reforms adopted this year in various sectors of society.)

Law professors can ask students how they would act if they represent someone who had a credible allegation of a sexual offense – or who has been credibly accused of a sexual offense.  For some students, it might be tempting – but naive – to simply advise victims to pursue a legal case or to advise actual perpetrators to admit guilt and accept full responsibility.  Real life is much more complicated than that.  Realistically, what would they do?

When plaintiffs bring such claims, they often end up negotiating confidential settlements with the defendants.  While both parties may want to make confidential settlements, they may be inappropriate in some situations, effectively covering up serious offenses.  When is it appropriate – or not – for lawyers to assist clients in negotiating these agreements?  What if the defendant is a serial offender?  I addressed these questions in this post.

Considering that a significant proportion of our population has been the victim of sexual offenses, it is important to be aware that some students may experience flashbacks or other traumatic reactions when discussing these issues.  Providing advance notice and an opportunity to opt out should be helpful.

Of course, this is a teaching moment for all of us, not just law students.  The coming weeks and months will show what we have (and haven’t) learned.

 

Storytelling, Social Media, Legal Education and the Law

Let me tell you what I wish I’d known

When I was young and dreamed of glory

You have no control

Who lives, who dies, who tells, your story.

Lin-Manuel Miranda, “Who Tells Your Story”

 

Late last week, two women confronted U.S. Senator Jeff Flake as he was entering an elevator when the Senate was considering how to proceed on the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.  These fearless women, Ana Maria Archila and Maria Gallagher, both survivors of sexual assault themselves, confronted Flake and asked him how, by effectively ignoring the testimony of Dr. Christine Blasey Ford, he could silence the stories of countless victims of sexual assault who heard in Dr. Ford someone who told a credible story, one that was all too familiar to them.  Their passionate plea seemed to have worked, at least for the time being, and convinced Flake to pressure the Senate to agree to re-open the FBI investigation into the allegations against Kavanaugh.  This was, perhaps, the most powerful and effective “elevator pitch” in the history of elevator pitches!

Senator Flake is no stranger to these sorts of confrontations.  Last year, as Congress was in the midst of passing a massive tax cut that would have ramifications on health care throughout the United States, he was approached while on a plane by activist Ady Barkan, who works with the same organization as Ms. Archila, the Center for Popular Democracy.  Barkan, who is, himself, stricken by ALS, or Lou Gehrig’s Disease, asked Flake to consider the effects of Congress’s action on the lives of millions of Americans, including his own.  What Barkan, Archila and Gallagher were able to do was tell their personal stories to an individual in power, persuasively, personally, and with great and unbridled passion.

I do not know if elected officials have faced these sorts of interactions in the past.  It is safe to assume they have.  President Lincoln was known to receive visitors at the White House from people looking for patronage jobs or mothers asking about their sons who were off at war.  But never before have we had the ability to broadcast these interactions, practically in real time, and spread them, virally, through social media.  And it is this ability that is re-aligning power, placing new tools at the disposal of lay advocates and professional advocates alike.  It is what has helped to shape the discourse and allow people to not just tell their stories, but also to pass those stories along, instantly, and throughout the world.

The ability to tell stories, to bind people together, and to help them imagine a better future and the steps necessary to bring that future to fruition is what Yuval Noah Harari calls “mythical glue.”  For Harari, this ability sets us apart from other species; indeed, it’s what makes us human.  For the late Robert Cover, storytelling and narrative shape the law and even society itself. Now that we have the ability to connect over these stories like never before in human history, we also have the power to influence society by telling powerful stories in unfiltered, unmediated ways.

Just as the law, and, in turn, society, are shaped by stories, so, too, is the legal profession founded on storytelling.  Indeed, lawyers tell stories all the time: to juries, to judges in their briefs and in court, sometimes even to the press.  Storytelling is an essential part of lawyering, and judges are susceptible to effective stories.  A poorly told story, one that has gaps, or does not resonate, is not an effective form of advocacy.  As the Supreme Court found roughly twenty years ago in the case Old Chief v. United States:

A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Lawyers, as advocates schooled in the arts of persuasion, have long told stories, but, traditionally, they have been the masters of their clients’ stories, sometimes portraying their clients in ways that the lawyers thought judges or juries might want to hear, too often describing clients as victims rather than individuals with agency, as masters of their own lives and destinies.  Legal scholarship, including Critical Race Theory and Poverty Law Theory, has embraced the notion that clients should not only control and shape their stories, but should be invited to tell them as well.

Law students too can master their own stories.  In a recent press conference in Washington, DC, organized by students of Yale Law School to protest Judge Kavanaugh’s nomination, students found their own voices, and spoke, powerfully, about what a Supreme Court with Kavanaugh as the swing vote would mean for them, their families, and millions of Americans.

Today, a lawyer does not have to control her client’s story, or the means through which it is told.  Advocates and clients have new tools at their disposal to shape and spread their own stories, but can also be the ones telling them.  Lawyers should step aside and work with clients to help them tell their own stories, their truth, in powerful and persuasive ways.

As law professors, we should look to maximize opportunities to introduce client voice and student experience directly into the pedagogy, through flipped classrooms and other methodologies—like project-based initiatives and clinical teaching—that place students and clients at the center of the educational experience.  As part of that education, students should also experiment with new tools of communication that facilitate disintermediation: that powerful phenomenon that allows the clients to speak directly to each other, to those in the halls of power and authority, to those in the broader community who might be allies, and even to adversaries.  In reality, though, our students, digital natives, are probably better at the use of these tools than their professors and have a lot to teach us about their effective use in advocacy campaigns, as the students from Marjory Stoneman Douglas High School and many young people across the country are proving.  The importance of these new means of communication in contemporary times cannot be overstated. Indeed, when the President of the United States can now send a text message to every American with a cell phone, the tools of communication have never been more powerful, and the stakes, perhaps, never higher.

Ensuring law students understand effective storytelling in legal advocacy should always be at the core of a legal education, whether explicitly or implicitly.  (I prefer making it explicit.)   What is more, placing students in positions where they can begin to experiment and work within the new media landscape, to develop competencies in these areas and empower clients to tell their own stories, should also be an essential component of legal education today and tomorrow.

In a recent piece in the Southern California Interdisciplinary Law Journal I explore some of these issues and the role of new media tools in helping to decentralize and democratize storytelling in the law.  Please read it here.  Feedback always welcome.

Are All Free Legal Services the Same for the Volunteer Lawyer? Teaching Students to Evaluate Post-Graduate Pro Bono Opportunities

Law students are taught the importance and desirability of pro bono work, and rightfully so. Pro bono service has obvious benefits to our students, to young lawyers, and to society. In 2012, New York emphasized its commitment to pro bono by becoming the first state to require pro bono service for bar admission. In law school, while discussing the value of pro bono service, we can also provide our students with tools to evaluate all the pro bono requests they may receive once they enter legal practice.

While in law school, students are bombarded with opportunities to volunteer – sometimes for credit, sometimes for bar admission requirements, and sometimes simply for the pleasure of helping others. After graduation and admission to the bar, new lawyers are similarly bombarded with opportunities to take on free legal work and perform pro bono services. State and local bar associations and local not-for-profits, as well as individual clients, are frequently searching for free lawyers. How do experienced lawyers evaluate these opportunities? And what can we teach students in order to help them evaluate the risks and benefits of pro bono opportunities once they are admitted to the bar?

Experienced lawyers know what questions to ask. They know how to assess the risk, the time commitment, and the potential benefit to clients of the pro bono work. Students need to learn how to assess pro bono opportunities. A search of available resources for students to assist them in independently scrutinizing pro bono opportunities yielded little pertinent information. Many schools have online information about the individual school’s available programs. As described below, some schools address post-graduate pro bono for those students seeking jobs in biglaw.

Yale Law School has information on “Critically Evaluating Pro Bono Policies” https://law.yale.edu/student-life/career-development/students/career-guides-advice/critically-evaluating-pro-bono-policies for law students interested in summering at big law firms. The information provided is useful to the small number of law students nationwide who end up in large firms with significant pro bono programs with dedicated directors of pro bono. The questions posed (like “has the firm received accolades for its pro bono work?”) don’t often apply to students and new lawyers working in firms with fewer than ten attorneys. Harvard likewise provides a guide in “An Introduction to Pro Bono in the Law Firm Setting” https://hls.harvard.edu/content/uploads/2008/07/guide-pro-bono.pdf that addresses opportunities in large law firms. These large firms have likely vetted their pro bono partners, assessed the merits of the work, and selected not-for profits or clients with whom to work. Students selecting a firm based on their commitment to pro bono ought to be congratulated, but still represent a select few of the annual law school graduates. According to NALP’s job statistics, http://www.nalp.org/uploads/SelectedFindingsClassof2017.pdf, 28.1% of entry level law firm jobs were in biglaw for the class of 2017, while over 35% were at firms with fewer than 10 attorney.

The available resources focus on the 28% of students entering firms who enter biglaw. While the pro bono evaluation resources are dedicated to those accepting the 28% of jobs in biglaw, what about everyone else? We can step in and fill the void by teaching our students how to evaluate the pro bono opportunities and programs.

We teach legal ethics. We teach professionalism. We teach legal writing. In each of these classes, we can and should do more to teach students to think critically when evaluating pro bono clients, pro bono matters, and not-for-profit legal service providers. Young attorneys and soon-to-be law graduates planning on working in private practice should at least be taught the questions to ask, to use the answers to evaluate the risks associated with the opportunities, and, in fact, to try to pair with local legal service providers or courts to benefit from some of the protection provided by an umbrella organization. Even then, however, new attorneys should evaluate the support provided by the legal services provider. Some legal service providers simply complete intakes and assign pro bono cases to volunteer attorneys. The attorneys then represent the clients with varying amounts of support from the legal service providers.

To that end, here is a non-exhaustive list of questions students and recent graduates can be taught to ask in order to evaluate the risks and benefits of certain pro bono opportunities:

  • How many appearances does this type of matter usually require?
  • Does the legal services provider have meeting space for meeting with the client?
  • Under whose malpractice insurance does this matter fall?
  • Is the program of the type (“sponsored by a nonprofit organization or court”) such that the relaxed conflict of interest rules of 6.5 apply?
  • If there are costs incurred (filing, copying) who bears them?
  • What kind of continued support does the legal services provider offer? Is there continued oversight by a staff attorney of the legal services provider?
  • Who is ultimately responsible for the case – the volunteer attorney or the legal services provider?
  • What if the volunteer needs to step down and cease working on a client, case, or matter? Will the legal services provider step in? Are there procedures in place? Do the provider’s policies add additional burdens to those already in place in the state’s procedural rules for withdrawal? If the attorney can no longer ethically represent the client, will the legal services provider step in?
  • Even if the attorney is responsible for the matter, if it veers into areas wherein the attorney has less experience, is there someone at the legal services provider who can help?

The above questions are largely geared to pro bono matters managed and assigned by not-for-profit legal services providers, but can be tailored for other situations. While there are no right answers to the questions, the specific answers in any situation will assist recent law graduates in assessing volunteer opportunities and determining which ones suit their current needs and abilities. Failure to ask these questions, and our failure to teach our students to ask them, can lead new volunteer attorneys into unintended costly, long, and time-consuming relationships with pro bono clients and service providers. Instead of sending our students blindly out into the world of pro bono, we can help them develop an appropriately clear-eyed devotion to it.

Discussion Questions for Law School Classes Watching the Senate Judiciary Committee Hearing Today

Briana Rosenbaum, my colleague at the University of Tennessee College of Law, has provided the attached discussion questions and notes to her Civil Procedure students for use in a live, online discussion as they watch the hearing today. With her permission, I am sharing this with anyone who finds it helpful to use in a law school class today.

Questions for Consideration for Civil Procedure Class

Professor Briana Rosenbaum 

United States Senate, Committee on the Judiciary

Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 5)

Thursday, September 27, at 10 a.m. (ET)

 

WITNESSES

Panel VI

Professor Christine Blasey Ford, Ph.D.

Palo Alto University

Palo Alto, CA

 

Panel VII

The Honorable Brett M. Kavanaugh

Nominee to Serve as an Associate Justice of the Supreme Court of the United States

Chevy Chase, MD

 

  1. What is the role of the Senate (and the Judiciary Committee) in the confirmation process?

Consider:

  1. Article II, Section 2, Clause 2: the president has the power to “nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.”
  2. Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee (August 14, 2018)“Usually within a week of the end of hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate. The committee may (1) report the nomination favorably, (2) report it negatively, or (3) make no recommendation at all on the nomination. A report with a negative recommendation or no recommendation permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination.”
  3. June 29, 2001 Letter of then-Chair Senator Patrick J. Leahy (D-VT), and then-ranking Member, Senator Orrin G. Hatch (R-UT).States that the Judiciary Committee’s “traditional practice . . . has been to report Supreme Court nominees to the Senate once the Committee has completed its considerations. This has been true even in cases where Supreme Court nominees were opposed by a majority of the Judiciary Committee. We both recognize and have every intention of following the practices and precedents of the committee and the Senate when considering Supreme Court nominees.”
  4. Only a simple majority of the full Senators are needed to confirm Supreme Court nominees (prior to Justice Gorsuch, a successful filibuster could be used to effectively require 60 votes to ensure cloture and a vote on the nomination).

 

  1. As you are watching the hearing, what roles are the various players taking on: judge, jury, witness, prosecutor, advocate?

Consider:

  1. Three Senators now sitting on the Judiciary Committee also sat on the Judiciary Committee when the panel heard Prof. Anita Hill’s testimony in 1991 against the nomination of Supreme Court Justice Clarence Thomas: Republican Sens. Chuck Grassley of Iowa (now the Chair of the Committee), Orrin Hatch of Utah, and Democratic Sen. Patrick Leahy of Vermont.
    1. One of these senators (Hatch) quite famously took on the role of advocate to then-Judge Thomas. He acted as a prosecutor by cross-examining Anita Hill heavily, an advocate, by stating affirmatively that he disbelieved Anita Hill prior to hearing evidence, and even a witness, by offering his own evidence of Anita Hill’s credibility.
    2. The other senators were also subject to criticism, including for how they handled questioning.
  2. What have these three Senators, and the other Senators at the hearing, seemed to have learned from the Thomas hearings? What evidence do you see of this?

 

  1. What is the “standard of proof” at the hearing? Do you see a “standard” being applied at the hearing?

Consider:

  1. Senator Orrin Hatch (Nomination Hearing Transcript, Oct 11, 1991, 29):“I hope that nobody here, either on this panel or in this room is saying that, Judge, you have to prove your innocence. Because I think we have to remember and we have to insist that Anita Hill has the burden of proof or any other challenger, and not you, Judge. The fact of the matter is, the accuser, under our system of jurisprudence and under our system of fairness, would have to prove their case.”
  2. Senator Robert Byrd (D, W.Va.)(Executive Session Hearing Transcript, Oct. 15, 1991), “When are Senators going to learn that this proceeding is not being made in a court of law? This is not a civil case; it is not a criminal case wherein there are various standards of doubt, beyond a reasonable doubt, so on and so on. . . . This is a confirmation process, not a court case. We are talking about someone who was nominated for one of the most powerful positions in this country. . . . His decision will affect millions of Americans, black, white, minorities, the majority, women, men, children, in all aspects of living, Social Security, workmen’s compensation, whatever it might be that might come to the Supreme Court of the United States. That one man in such an instance will have more power than 100 Senators, more power in that instance than the President of the United States. This is not a justice of the peace. This is a man who is being nominated to go on the highest court of the land. Give him the benefit of the doubt? He has no particular right to this seat. No individual has a particular right to a Supreme Court seat. Why give him the benefit of the doubt? If there is a doubt, I say resolve it in the interests of our country, its future. Let’s not have a cloud of doubt for someone who will be on the court for many years.”
  3. Alan Dershowitz (Harvard) (2018):“The standard for proving a serious sexual allegation must be high. In a criminal case, the evidence must prove the crime beyond a reasonable doubt. “Better ten guilty go free than one innocent be wrongly convicted.” That standard must vary with the consequences to both sides. On university campuses, for example, the standard for proving a charge of sexual assault that could result in expulsion should be close to proof beyond a reasonable doubt, perhaps “clear and convincing evidence.  But it should never be “a mere preponderance of the evidence,” because that means no more than a 51 percent likelihood that the sexual assault occurred. Under that low preponderance standard, 49 out of every 100 people convicted may well be innocent. That is far too high a percentage. What about when the issue is suitability to serve a lifetime appointment on the Supreme Court? The consequences of an erroneous decision are high on all sides. A nominee rejected for a false allegation of sexual assault will suffer grievous reputational and career consequences. But so will the woman whose accusations are deemed untruthful. There is also the consequence of having a Supreme Court justice serve for many years if he was a sexual assailant. On balance, the standard for accepting a serious allegation of sexual assault should be higher than proof by a mere preponderance. It should come close to clear and convincing evidence, especially if the allegation is decades old and the nominee has lived an exemplary life ever since. But senators should cast their votes based on a total assessment of the candidate’s suitability.”
  4. Caprice Roberts (Univ. Florida) (2018): “Whether or not there’s conclusive proof of the alleged assault, every senator is entitled to vote yes or no on elevating Kavanaugh from his current position as a federal appeals court judge to the pinnacle of American law based on their individual, subjective assessments of whatever testimony is provided. . . . Kavanaugh’s public hearings, then, and any inquiry now into the accusations against him, are less like a trial and more like a high-stakes job interview — and this job comes with life tenure. The main point of the hearings is to determine the nominee’s fitness for the post. Senators evaluate judicial qualifications, record, demeanor and philosophy. Modern judicial nominees undergo in­cred­ibly thorough vetting in preparation because they know that senators may also explore every aspect of their past. Allegations of sexual misconduct fall well within the scope of relevant considerations. Because guilt or innocence isn’t the issue, but instead fitness for the Supreme Court, the burden of proof isn’t, and shouldn’t be, on Ford, the accuser; it remains on Kavanaugh.”
  5. Trey Goudy (R, SC-04) (2018): Since a Supreme Court nominee was accused of “a crime that goes to the heart of your character, I think the American people expect there to be a high evidentiary burden.”
  6. Michael Bromwich, lawyer for Dr. Blasey Ford (2018): “Neither Dr. Blasey Ford nor Judge Kavanaugh is on trial. . . The goal should be to develop the relevant facts, not try a case.”

 

  1. Who has the burden of proving the assault, or lack thereof, if there is such a burden? Kavanaugh? Blasey Ford? Democrats? Republicans? Someone else?

Consider

  1. Who is presenting evidence?
  2. Who is speaking first? Last? Is this choice of order meaningful? Note that in criminal and civil trials, the person who has the burden of proof (usually the plaintiff or the prosecutor) is allowed to present their case both first and last.

 

  1. What is the role of procedure in the hearing? Should ordinary rules of civil and evidentiary procedure apply?

Consider:

  1. The Federal Rules of Civil Procedure and Evidence do not govern congressional hearings, and Congress has not set out a set body of evidentiary or “discovery” rules for such hearings.
  2. Instead, procedures are applied case-by-case.
    1. Thomas Hearing: Chairman Joe Biden (who has a law degree) attempted to impose evidence-like procedures on the hearing, including forbidding the use of some hearsay (like FBI Reports containing the statements of Prof. Anita Hill). However, toward the end of the hearing, Senators introduced (without objection) evidence of newspapers with hearsay statements, polygraph tests, and other evidence that would be inadmissible in court.
    2. Kavanaugh Hearing: Chairman Grassley does not have a law degree. It is unclear at the moment what rules will be imposed, if any, on the hearing.

 

 

 

How Law Professors Address Sexual Assault Matters to Students

This Thursday, the Republican controlled Senate Judiciary Committee will hold its 5th day of hearings on the controversial Judge Brett M. Kavanaugh’s nomination to be an Associate Justice of the Supreme Court of the United States the Supreme Court. The controversy surrounding his nomination and his treatment of women when in high school and college should be front and center on Thursday starting at 10 am (ET) (depending on the latest revelation?).

Young activists’ and law students’ interest in, or fear of discussing, this subject is palpable across campuses as evidenced by the Believe Survivors walkout. (Another is scheduled for this coming Thursday.) Yale law school professors cancelled or were forced to cancel classes last Monday because of activist student voices, to the dismay of other students.

Given that a “survey conducted by OVW and the Bureau of Justice Statistics found that an average of one in four undergraduate females experience sexual assault by the time they finish college,” it is likely that there is at least one, if not more, survivors in every class we teach. Therefore, how should we as legal educators respond, in and out of the classroom, to the challenging climate which we and our students now face?

Here are some preliminary thoughts and I hope our readers add more:

  1. Educate each other and our students about how to have this discussion without playing into gender myths and sexual assault implicit biases (See my discussion of five simple rules )
  2. Discuss misplaced and misunderstood concepts of presumption of innocence and due process.(Capital Pressroom radio interview with Professor Christine Sgarlata Chung and myself)
  3. Discuss what the burden of persuasion and the burden of proof means and why the national conversation is playing havoc with these concepts.
  4. Assign material on Anita Hill.
  5. Skip taking attendance Thursday.
  6. Stream the hearing into your class. (https://www.judiciary.senate.gov/hearings ) After anonymous input from all students, I am streaming the hearing starting at 10 — albeit this is a no-brainer for my Domestic Violence seminar since the scheduled topic is sexual assault!
  7. Wear a button, a T shirt, have something on your person or PPT screen that shows you know that there are likely survivors in your classroom and that you support them – whether or not you support Dr. Ford or Judge Kavanaugh.
  8. Discuss Vicarious Trauma of Lawyers who work with Sexual Assault/Intimate Partner Violence Survivors and the need for self-care.
  9. Visit this site and share it with your students to encourage all to “Start By Believing
  10. Have at your fingertips counselling and other resources particular to your school for those experiencing PTSD.

What are your thoughts?

 

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