Sunday, June 15, 2014

Book Review: Civil Procedure Simulations by Michael Vitiello

When I was in law school in the late 80s, I didn’t draft a single pleading except for the appellate brief in Legal Writing. In Civil Procedure, I didn’t look at a single pleading. I understood the areas of Civ Pro., like personal jurisdiction and Erie, but I really didn’t see how they fit together until I started practicing. My law school experiences were typical of the time, and they are still typical of many law school classes today.

However, seven years ago the Carnegie Report and Best Practices started to change things with their recommendations for active learning and experiential education. Since then, a number of publishers have issued series of experiential legal texts, with each series being directed by a strong editor, expert in legal education reform.

One of the newest of these series is West Academic Publishing’s Bridge to Practice Series. This series consists of experiential supplemental texts, which can be used with any casebook. The editors describe the series as:

"Titles in the Bridge to Practice Series help students hit the ground running when they graduate. These inexpensive casefile-based supplemental texts contain sets of simulations covering a wide array of issues, giving students the opportunity to learn essential lawyering skills. These simulations put students in roles of counselor, oral advocate, and legal writer. Edited by Mike Vitiello (author of the Criminal Procedure and Civil Procedure titles), these books bring legal doctrine to life." Current and forthcoming areas covered by the series include Civil Procedure, Criminal Procedure, Contracts, Antitrust, Evidence, and Property. In this post, I will review Civil Procedure Simulations: Bridge to Practice by Michael Vitiello.

I wish I had been a book like this when I was taking Civ Pro. Its numerous pleadings, its insightful questions on litigation strategy, and its simulations help students connect the theory behind Civ Pro with the practical aspects of being a lawyer. While it is largely practical, it also provides the students with a deeper understanding of doctrine because it requires students to apply the doctrine to real world problems.

Professor Vitiello states his philosophy in a footnote in his introduction:.

"Legal educators use ‘experiential learning’ to mean somewhat different things. For some, it is clinical education. More broadly, however, the term also includes classroom simulation exercises. Classroom exercises have a number of advantages over clinical learning: most importantly, a professor can design material that teaches a fixed set of skills. Whether a student gets a particular set of experiences in a clinical setting is a matter of chance."

I agree with this philosophy. While clinics should be an important part of legal education, law professors need to teach students specific skills, and I believe that these skills should be taught in every class, including first-year doctrinal classes.

Professor Vitiello does this in his Civ Pro book by taking the students through a single defamation case, using the case file method. He has chapters on selecting a forum, personal jurisdiction, diversity jurisdiction, federal question jurisdiction and removal, venue and transfer of venue, motion to dismiss for failure to state a claim, discovery, amending the complaint, and summary judgment.

The feature I like best in the book is the copious examples of pleadings. I believe that students need to get the look of pleadings in their heads in order to understand what is happening in a case, and I have always had students look at numerous pleadings in my legal writing classes. Professor Vitiello sets up his chapters in such a way that requires students to study the pleadings carefully. Students who have had classes that use this book will have a significant head start when they start to practice over students who have had classes with just traditional casebooks. Of course, using this book will also give students a head start on trial practice classes and teams.

Another useful feature of the book is its questions on litigation strategy. When I took Civ Pro, I understood how personal jurisdiction and subject matter worked, but I didn’t understand why they were important. I believe that students need to reflect on litigation strategy to fully understand Civ Pro doctrine, and this book helps students do that.

The heart of the book is the simulations. For example, the simulation on diversity jurisdiction gives the students materials on a particular part of the defamation case, and the professor can use those materials for an in-class discussion or the professor can assign the students various roles and hold an evidentiary hearing. Similarly, for the plaintiff’s motion to remand simulation, Professor Vitiello provides the teacher with the option of either arguing the motion in class with students assigned to the various roles or having the students act as a law clerks and write a short memo to a judge on how the court should resolve the issue. I especially like his summary judgment simulations in which he has the students consider whether the parties have met their burdens under the summary judgment rules. If the students just read the cases on summary judgment they will only partially understand how the rules work. However, if they have to apply the rules to facts, they will generally understand summary judgment.

My major criticism of the book is that Professor Vitiello does not require students to draft pleadings. It helps a student understand the doctrine and facts of a case differently if she is assigned to draft a complaint. The book could have include a sample complaint, an assignment to draft a complaint based on the case file, and a sample complaint to check the students’ complaints against. Similarly, drafting an answer to a complaint helps students see how attorneys think. He does suggest that students draft discovery, such as interrogatories and requests for production of documents. I hope that professors follow this suggestion because drafting discovery is very good preparation for practice. However, I would have liked to have seen some extended examples of discovery in the book, rather than referring students to other sources. Students are more likely to examine something that is in their books.

Despite the above quibbles, I think that Professor Vitiello’s book will be very valuable for Civ Pro students. With the great changes taking place in the practice of law, law professors cannot rely just on traditional casebooks. They need to use supplements, like the Bridge to Practice series, or casebooks that incorporate experiential exercises.

(Scott Fruehwald)

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Thank you for your review. Your criticism re a drafting exercise is well taken -- if I do a second edition, I will include such an exercise. Also, if anyone adopts the book and wants to do a drafting exercise, I have some ideas about how to integrate the exercise into the material. Thanks again. Mike

Posted by: Michael Vitiello | Jun 16, 2014 7:22:12 AM

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