by Joseph William Singer
Bussey Professor of Law, Harvard Law School
We all know law professors use the case method to teach law. But the Problem Solving Workshop has adopted a new kind of case method—the kind more typical of business and public policy schools. The old Langdellian case method asks students to read judicial opinions; we do that to teach students how to interpret cases, to read the law, to consider alternative rules of law, to make arguments on both sides of contested questions, to understand the judicial role and legal reasoning. Such cases start at the end when the facts are decided, the legal issues identified and narrowed, and a ruling of law announced and defended.
The problem solving case method focuses on the case at the very beginning—before the facts are all known, before the parties’ goals are clarified, before the legal issues have been narrowed, before the dispute has crystallized or run its course. This problem solving case method asks students to consider who the client is and what their goals are or might be, what the facts are and what facts the lawyer needs to find out, what various legal rules affect the client’s ability to achieve the client’s goals, and what options might be available to help the client achieve her goals ethically and within the bounds of the law.
Writing a case like this may seem daunting, but any law professor can do it by following these simple rules:
First, pick a fact situation that arises in your field of law that is both common and interesting and which raises practical or legal problems that must be resolved. In torts, it could be a corporate decision that might avoid potential accidents or it might be responding to a past disaster or accident. In contracts, it could be planning a transaction or dealing with a potential breach of an existing arrangement or a dispute about the terms of an ongoing arrangement. In property, it could be a dispute among neighbors, between landlord and tenant, with zoning officials; it could be planning a real estate deal or the terms of a charitable trust. In criminal law, it could be a question of whether a crime was committed or how a prosecutor should allocate enforcement resources. In procedure, it could be a search for an appropriate remedy for a problem or how to handle ongoing litigation. Every teacher knows many issues that come up in their particular field; all that you need to do is to think about what the issue might look like at the beginning rather than at the end.
Second, choose a client. The new case study method focuses on serving the interests of clients and helping them navigate the law to achieve their goals. This stage also involves choosing the other parties with whom the client may need to deal to achieve the client’s goals.
Third, construct a fact scenario that involves the client wanting something. Either the client wants to achieve a result or the client wants to solve a problem or dispute. Think of the facts a lawyer would need to know to determine what the client’s goals are and what facts would be needed to apply existing rules of law. In writing the problem, withhold some of those facts so that students would learn to look for facts that are not yet known but need to be known to solve the problem.
Fourth, consider various rules of law that are relevant to the situation. This is the part that is closest to what law professors do in their classes. Pick a rule that requires interpretation or a situation that implicates several rules, including those that cross subjects. Pick a fact situation that might prompt a judge to distinguish a precedent, craft an exception to the rule, or to apply a competing rule.
Fifth, consider what options are available to solve the problem or achieve the client’s goals. Think of the rules not as the ending point that decides what happens but as rules of the game that create both constraints and opportunities. The law may prevent the client from doing certain things but may allow her to achieve her goals some other way. Another party may have conflicting goals but there may be ways to help her achieve her underlying interests that also allow your client to serve her interests.
Finally, put it all together. Start with the story or fact situation. A client comes into your office with a story and a problem. That’s part 1. The class discussion would involve talking about who the client is, what the client’s legal obligations or goals are or might be, what facts we need to find out to clarify what happened and what the client wants, what laws might be relevant to solving the client’s problem, constraining the client’s actions, or empowering the client with respect to other actors. Then identify the relevant law: what cases or statutes should the students know about? Either make a list and require them to look up those cases or statutes and report on what the law requires or summarize the law yourself. That’s part 2. Class discussion would entail figuring out what the law is and how it applies to the client’s situation. Finally, think about how to structure a class discussion about potential options, their pros and cons, and how to communicate them to the client.
That’s it. This is easier to do than you might imagine. Perhaps you can start by taking a legal issue you teach in class and imagine how it arises from the client’s perspective in the real world. What is the first meeting with the lawyer like? What was the client’s experience like before the first meeting? Take it from there. Use what you know and you can do this.
About the author: Professor Singer teaches and writes about property law, conflict of laws, and federal Indian law. He developed the Problem Solving Workshop at Harvard Law School with Professor Todd Rakoff, and has taught this course to first-years since its inception in 2010.