The Law School Magazine  ·  Spring 2012 : Features

Bringing the law to life

By - Spring 2012
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Around 6 p.m. on a Monday night, two students sat at a table in the front of a lecture hall large enough for more than 70 students. Yet, they faced fewer than 10 sets of eyes staring back at them.

The pair staring most intently belonged to James Davidson ’80, deputy managing partner at Ice Miller LLP and partner in the firm’s employ­ment litigation practice area. Davidson, also an adjunct professor at The Ohio State University Moritz College of Law, teaches The Employment Problem, one of four Capstone Courses offered to 3Ls. The courses challenge students to apply knowledge from the traditional law cur­riculum to real-world problems designed by practicing lawyers who are leaders in their fields with a wealth of professional judgment.

Observing his two students role-play­ing through an initial client interview with Marc Amos, staff counsel at Big Lots, Davidson took notes. Scribbling more furiously were the 3Ls seated at the front of the lecture hall, Jaci Wilkening and Justin Spillers, who focused on Amos’ story of an elderly pottery expert falling at Big Lots.

The woman claimed $1.25 million in damages from the incident that left her with a broken arm, Amos told the duo, his potential lawyers. He reiterated that he would rely heavily on them if they were to defend the company. The scenario wrapped up with Wilkening and Spillers assuring Amos their firm would be qualified to address his concerns.

Slipping out of the scenario, Amos and Davidson provided some feedback.

“Don’t try to do something you can’t do,” Davidson instructed. He added that it’s better to let a prospective client know you can’t get the job done, rather than overreach and fail. “The client always comes first. You and your law firm are way down the list.”

Davidson left the lecture hall to walk out Amos, and the students gushed to each other about the exercise. Wilken­ing told a classmate the practitioners’ “personalities are fun to see” and that someday the law students would be confident like them.

Alan C. Michaels, dean and Edwin M. Cooperman Professor of Law, said, “The classes train and orient students toward effective problem-solving skills, which is so critical to successful practice in our profession. Our range of Capstone offer­ings provides opportunities emphasizing litigation and transactional law.”

Garry W. Jenkins, associate dean for academic affairs and associate professor, explained that Capstone Courses are set apart from other law classes at Moritz. Enrollment is limited to 10 students or fewer, graded pass or fail. The one-credit-hour classes meet only seven times during the semester. Jenkins added, “Small enrollment ensures individualized attention, and the integration of doctrine with skills training allows the Capstone Courses to teach and cultivate judgment.”

“I would describe this as what they don’t otherwise teach you in law school,” Wilkening said. “I would kind of equate it to the clinic-type of law school class rather than a traditional case law, lecture-type of class.”

Bringing real scenarios to class

Davidson called on a real case he was involved with to create The Employ­ment Problem. After changing facts and concealing clients’ names, he made the case into a “user-friendly” hypothetical, he said. Last year’s Employment Problem involved a group of employees taking alleged secrets with them to start a new business. The group’s former employer was seeking a restraining order against the employees.

“Most of the learning is done by class­room design,” Davidson said.

Like most Capstone Course adjunct profes­sors, Robert J. Miller, of counsel at Jones Day in Columbus, utilizes role-playing in his course, The China Problem. Students are expected to act as a legal counsel to a theoretical company intending to start a busi­ness in China. As counsel, students must assess the pros and cons of starting a business overseas, address existing op­tions for potential partners, and prepare negotiations with prospects. Miller said he hopes to polish his students’ ability to provide a recommendation for their cli­ent beyond conducting legal analysis.

Miller was one of the first practitio­ners to teach a Capstone Course when they were introduced in 2009. Noting the significance of China becoming a relatively new foreign investment since 1990, Miller said he expects students to be able to recognize the country as “an increasingly important commercial part over the next couple of decades of their careers” by the course’s end.

Patricia Hatler, executive vice president and chief legal and governance officer at Nationwide, compared the Capstone Courses to her own law classes at the University of Virginia. She recalled her experience not being exactly like the courses at Moritz, which offer “such a different and more informative experience about what the actual practice of law is going to be like.”

With expertise in dealing with natu­ral disasters for Nationwide, Hatler structured her course, The Disaster Problem, from an assortment of cases the company managed after Hurricane Katrina. During one spring semester meeting, students were engrossed with a video capturing the 2005 hurricane’s destruction in Mississippi. Munching on popcorn Hatler brought to class, the students watched a roof being ripped off a Hampton Inn and a Wendy’s restau­rant. Buildings were gutted by the storm surge, and windows shattered in office buildings reaching high into the sky.

“It is hard to imagine the degree of devastation from a storm like Katrina unless you see it,” Hatler said.

When the video was over, Hatler split up her class into two groups. One was to put on their “CEO hats,” and the rest were to wear “in-house litigation hats.” She presented students with different situations posed by the storm’s damages and then questioned if they would settle or go to trial, depending on the circum­stances.

Hatler told the students at the end of the class that their formal presentation to a board of directors the following week would be videotaped. Capturing oneself on video is “the single most construc­tive thing you can do,” she said. It allows students to later observe their strengths and weaknesses in presenting a case’s complications and assess their ability to effectively distill complicated legal infor­mation to different audiences.

Having practiced for more than 30 years, Hatler said, “I certainly have learned that if I need to be effective, I have to connect with any audience at any given time.” This she identified as “a skill students will need if they’re going to suc­cessfully practice law.” Throughout the semester, Hatler’s simulations challenge students to give congressional testimo­nies, communicate with the media, and meet with a state insurance department.

Because Capstone Courses do not re­quire textbooks, most professors use news articles, their own materials, congressio­nal studies, videos, or Internet resources.

In The Hospital Problem, Kimberly C. Shumate ’92 uses attorneys. Assistant vice president and associate general counsel at Ohio State, Shumate invites practicing attorneys to role-play as clients to her students, who act as attorneys.

“This is something I feel like the more realistic I can make it, the more helpful it is,” Shumate said. “That’s been kind of my goal with it, is to make it something that really feels like real life. I reached out to real attorneys because they can, in their role-play­ing, reflect their own clients.”

Tallying up various attorneys who have participated in The Hospital Problem, Shu­mate said she’s even had someone from the Ohio State Supreme Court participate.

Learning in ‘safe environment’

The Hospital Problem concentrates on a case between an academic medical cen­ter, Alliance State Hospital, and a private practice network merging into the hospi­tal system. The case, which Shumate has been involved with the past two years, is actually ongoing.

Shumate requires students to address four legal issues that come along with the case: corporate issues regarding practice plans, physician practice groups, and the hospital; union issues due to the hospital being unionized and the private practice not; executive compensation issues be­cause private practice administrators will hold positions as hospital administrators; and ethical issues.

“That first class is always pretty excit­ing,” Shumate said. “The lecture I give them (the first hour of class) is about the law that they wouldn’t necessarily know.” The second hour of class, Shumate introduces students to their “clients,” the practicing attorneys. They conduct a client interview based on the fact pattern provided. Students have to prepare and email an advice memorandum to their clients and then present the memo in class the following week.

Chris Hogan ’98, an attorney at New­house, Prophater, Letcher & Moots, LLC, played a client on behalf of the hospital to 3Ls Lauren James and Allison Tuesday. After exchanging a firm handshake with Hogan, Tuesday acknowledged she was unsure of his main concerns after their initial client meet­ing. So she put in her memo what she assumed was most important to him. With a bit of an ornery smile, Hogan admitted he had only skimmed the memo.

Hogan, who has participated in The Hospital Problem twice, said he tries to re-enact the ex­periences he’s dealt with from his own clients. He recalled agonizing over his own 30-page memos to have clients tell him, “I just skimmed it.”

James said she found presenting in­formation in a way for a client to absorb easily was “very different than spitting it back out on a law exam, where the pro­fessor is used to digesting legalities.”

When the scenario finished up, Shu­mate was quick to provide feedback. For example, she cautioned to not outright acknowledge the client’s concerns were unclear, but try to begin with the con­cerns that are clearly understood. She reminded students that attorneys and clients do not sit at an equal place; clients expect attorneys to be experts who have professional advice worth paying for.

James, grateful to receive the feedback, said she hopes to take such practical ap­plications with her after completing the Capstone Course. “To be able to leave here with that knowledge and not have to learn it out there by making mistakes in front of people, this is a much safer environment to make those types of mistakes.”

 

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