Teaching the Law School Curriculum - Institute for Law Teaching ...

Family Law 213
Approach
Why I Use Problems in Teaching Family Law
My family law course represents a “marriage” between an analysis of cases and statutes and problems. I began
teaching family law using a traditional casebook. I found problems to be a useful adjunct with which to develop
cutting-edge scenarios and to stimulate students to think about what the law is and what the law ought to be.
The use of problems puts the student in the position of a practicing attorney, working with the applicable statutory
and case law to best represent a client. Problems present an excellent opportunity to have students advocate
against each other in the classroom and to gain a sense of what lawyering is all about. I’ve settled upon a pedagogy
that utilizes cases, statutes, and problems because it most nearly approximates the work of the family lawyer.
The problems in my book, Family Law: Problems and Documents (Aspen 1997), are adaptable to various teaching
methods — they serve as the focal point for class discussion, along with a case or statute, or they may be used
for a classroom simulation, in which the students may prepare written memoranda and argue the case to the
judge (who is played by the professor or a student).
The use of problems requires students to look at family law from the trial perspective. This is important since
a large number of family law issues are subject to the trial court’s discretion, reviewable by the abuse of discretion
standard. Since there is substantial appellate deference to the trial judge’s ruling, the client needs to understand
that appeal is often not a viable option. Problems then require students to present creative arguments of
law and policy for a trial court that is not often governed by a rule of law but is free to choose from several legal
options. With the focus on representing the client in a trial situation, problems also stimulate students to analyze
client expectations and the often difficult reconciliation between those expectations and the student’s own
sense of morality.
A Sample Simulation
This problem is a law office simulation involving Ken and Stella, who are to be married in 30 days and have
an appointment to speak with Ken’s attorney about a prenuptial contract. The professor may assign roles for this
problem in advance of the class simulation or instruct all students to be prepared to perform the assigned roles
on the day of the class simulation. In order to ensure preparation for the class by all of the students, I usually assign
the roles at the beginning of the simulation class. The three roles for this problem are the attorney (who has
represented Ken in the past), Ken, and Stella. The classroom is arranged to look like a law office, with a table in
the middle of the room, so that the student observers feel involved in the process. The students in the class are
instructed to evaluate the student-lawyers’ performance based upon what the students have learned from my previous
lecture on the law of antenuptial bargaining and contracts. The students are also expected to ask questions
of all three participants at the end of the simulation, which can last from 30 to 50 minutes. At the beginning of
the class, Ken and Stella are each given confidential instructions, which include questions they will ask the attorney
during the conference. These questions raise issues in the law of prenuptial contracts and also issues of
ethics, professional responsibility, and public policy. There is also information that will not be revealed by Ken
or Stella unless the lawyer makes the proper request (raising important issues on non-disclosure and validity of
prenuptial agreements). The simulation continues uninterrupted in order to preserve an air of realism. The parties
often discover in the conference that their expectations and personal desires are not the same. The students
are instructed to stay in their roles, which often produces some difficult practical problems with which the lawyer
must cope. This gives the students some sense of the practical difficulties of lawyering. After the simulation, I ask
the student-lawyer to give an overview of his or her expectations and strategy, given the information contained
in the problem and obtained from the casebook and class lectures. Also, the students playing the roles of Ken and
Stella describe their expectation and their perception of the lawyer and his or her role, and they share their personal
feelings about involvement in prenuptial bargaining. This is followed by questions of the participants from