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GONZAGA LAW REVIEW [Vol. 26:2 officer. 69 The law student had thoroughly and energetically prepared the case for trial. She had established an excellent relationship with the client and defense witnesses, had explored all prospects for a negotiated plea, and was convinced that the client could prevail at trial. However, she had never before tried a case (to a judge or jury) and approached the experience with great anxiety and some trepidation. The trial lasted one and one-half days. There were no major prosecutorial surprises, no unexpected evidentiary or jury instruction rulings from the bench, and no significant or prejudicial mistakes on the part of the student prior to closing argument. The case had gone as well as might be expected from the defense perspective, but was still a close call as the jury was, in effect, being asked to believe the testimony of a teen-age driver over the purported eye-witness account of an experienced police officer. The student believed, and I concurred, that an effective closing argument emphasizing reasonable doubt would be critical to influencing the jury's deliberations. The closing had been thoughtfully prepared before trial and was fime-tuned during trial to more precisely reflect the weight of the evidence on the question of the officer's credibility. Following a reasonably persuasive closing argument by the prosecutor, the student rose to her feet, approached the jury, and promptly froze. Some twenty or thirty seconds went by. She was obviously floundering, embarrassed, and suffering an acute mental block. More seconds. Finally, the student asked the court for permission to consult with me at counsel table. In whispered, halting desperation, the student implored me to tell her what to do. She had forgotten her argument and was feeling psychologically paralyzed. I offer this anecdote as an opportunity to examine the problem of intervention and role conflict for the clinical teacher in light of the considerations discussed above. Should I have "taken over" and given the closing argument myself? Should I have "forced" the student to persevere? The core value criteria as developed through use of the suggested five questions can guide the decision. First, the student unquestionably had primary responsibility for client representation. She had spent numerous hours with the client and witnesses 69. The Washington State Constitution has been construed to grant the right to trial by jury for all offenses punishable by incarceration.
1990/91] STUDENT PRACTICE 439 and had personally conducted the fact investigation, legal research, plea negotiations, and trial preparation. I had met the client and discussed the case generally with him for perhaps one half hour. I had similar limited contact with four defense witnesses and had not met two other defense witnesses and two prosecution witnesses at all. All pre-trial communication with the prosecutor had been through the student. It was clear the client looked to the student as primary counsel and expected her to have primary responsibility at trial. My inclination to intervene under these circumstances was minimal. Second, the client had been fully informed at the outset that the student would primarily handle his case under the supervision of a clinical teacher (not necessarily me). He was aware the student was a third year law student authorized to practice under Washington's student practice rule. He was also informed that the student had never before handled a criminal case or tried a case to a jury. Importantly, the client also was told about the potential availability of public defender services and was apprised of the estimated cost of securing private counsel. The fact that this was an educational experience for the student was communicated together with the fact that she was committed and prepared to give the case as much attention as necessary. Thus, it was apparent to me that the client voluntarily and intelligently accepted student representation, chose to forego other options, and did not reasonably expect me to personally perform any or all of the requisite lawyering activities. His informed consent militated against a decision to intervene. Third, I had worked closely and extensively with this particular student on other matters. I was reasonably confident from observing and evaluating her core areas of competence that I could predict her ability to perform in the courtroom. My confidence was buttressed by information I had received from clinical colleagues who had also worked with the student. I was prepared, in particular, to largely defer to the student in matters involving oral communications, tactical choices, and ethical judgment. As to the student's competence to quickly and accurately analyze important legal principles and doctrine, I was less sure, but this would not be a major factor in presenting the closing argument. 7 ' In general, my confidence in my own ability to judge 70. The student had no prior experience with the criminal law outside of required law school courses in criminal law and criminal procedure. While not generally deficient in legal analysis, it was not her chief interest or strength. For that reason I was prepared to intervene more quickly in those aspects of the trial involving more pure legal
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