Hastings Law News: February 26, 2001
March 2001 Title: Mrs. Palsgraf Meets Winnie-the-Pooh
by Art Macomber
As law journal articles go, this is only erudite or earth-shaking if you are a law student. Law students study appellate case law by a long-vaunted but much criticized Socratic method. Frequently, we end up pondering the same question as Professor Janeen Kerper, Professor of Law at California Western School of Law, but usually not quite as well: What’s the point of the case method?
After all, we drill on cases, cases, cases, and learn to analyze them to find the law hidden therein. Mostly we read judicial opinions, because this accomplishes the concurrent goals of learning to think “like a lawyer,” (which is really learning to think like a judge), finding the rules to build the overall structure of law, and engaging in dialogue with professors. The end result is to teach us to think and defend those dichotomous thoughts with an eye to entering an adversarial courtroom of zero-sum and winner-take-all.
But, as you occasionally hear, more than 80% of cases get settled before going to court. And those left usually get settled after they enter the courtroom, only a small percentage surviving onto trial, much less to the appellate level. So, why do law students learn so much about something they will hardly ever do?
When do we learn that which will dominate our schedules, like negotiation, counseling upset clients, writing, informal advocacy with government agencies or landlords or employers? When do we learn to work collaboratively? When do we discuss and reflect on values and personal choices for devising problem-solving strategies, instead of furiously studying and memorizing rules from the rare courtroom battle? In other words, when do we learn to think like lawyers, instead of like judges?
In Legal Education: Creative Problem-solving vs. The Case Method, 34 Cal. W. L. Rev. 351 (1998), Ms. Kerper takes on these issues. The Professor’s thinking boils down to this: if we were in carpentry school and all of our training, especially the first year, was with a hammer, and the other tools were saved for the second year or later (or never), there is a high likelihood that when faced with a problem we would reach for a hammer. Question is, would that tool really do the best job?
So, when Mrs. Palsgraf recovered from the explosion and walked into Matthew Wood’s law office, why did he reach for a legal solution? Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928). Were there no other problem-solving approaches he could have used? Why did this single mother of three have to lose the case and pay all the legal fees for both sides with more than a year’s worth of salary? Why did her stuttering have to endure the aggravation that worsened it into a permanently mute condition? Did the legal system serve her needs or did it fail her? Was this the best legal counsel a Yale-trained lawyer could give Ms. Palsgraf?
This law journal article argues that instead of a piece of Cardozo’s brilliant legal reasoning, Palsgraf was really an example of tremendously bad lawyering. Ms. Kerper goes on to discuss how we are trained to read cases and think like judges, which is good so we know one of our future audiences. But, are judges really our primary audience? With the number of cases brought into court, it would seem not. What are we missing?
Creative problem-solving assumes that every problem faced by a lawyer is not a legal problem, unless a legal solution needs to be the last resort. In fact, it makes sense that courtroom battles are stories of how the legal system failed. After all, we only go there when all other avenues are fruitless.
What other skill does a lawyer need to help clients? Upon graduation, will we feel compelled to offer legal advice — first? Professor Kerper makes a strong case for leaving the case method in place, but only as a smaller part of a broader curriculum based on problem-solving and other more commonly used legal skills. Is it possible to take the first year and study cases, but with an eye toward how we could have kept this situation out of court in the first place? Professor Kerper argues that the best lawyers never go to court at all, they solve problems before they balloon into cases.
If these types of questions have nagged at you at some point in your schooling, you will want to read this article.