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Clinical Legal Education : A Textbook for Law School Clinical Programs

Clinical Legal Education : A Textbook for Law School Clinical Programs - 02 edition

ISBN13: 978-1422407257

Cover of Clinical Legal Education : A Textbook for Law School Clinical Programs 02 (ISBN 978-1422407257)
ISBN13: 978-1422407257
ISBN10: 142240725X
Cover type: Paperback
Edition/Copyright: 02
Publisher: Anderson Publishing Co.
Published: 2002
International: No

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Clinical Legal Education : A Textbook for Law School Clinical Programs - 02 edition

ISBN13: 978-1422407257

David A. Chavkin

ISBN13: 978-1422407257
ISBN10: 142240725X
Cover type: Paperback
Edition/Copyright: 02
Publisher: Anderson Publishing Co.

Published: 2002
International: No
Summary

This textbook was created to provide a new tool for clinical teachers. It links together the central lawyering skills and values that are part of any clinical experience. Clinical Legal Education was written with a concentration on the Theory of the Client - a broadening of "case theory" to encompass all of the legal and non-legal approaches that can be used to advance one or more of a client's goals. Rather than defining prescriptive approaches to lawyering tasks, each chapter explores a number of "choice moments," those points at which a lawyer's choices will affect the scope and nature of the representation. Clinical Legal Education will help students learn to identify those moments and to effectively reach and implement decisions with their clients.

In recognition of the realities of the clinical teaching experience, the text is less than 200 pages and is easily adaptable to a variety of clinic settings and class formats. It covers necessary skills in Interviewing, Counseling, Fact Investigation, and Negotiating that apply to every clinical experience and uses examples and contexts geared to the clinical experience. The text was subjected to real world testing in several law school clinics, and the experiences gained there are further reflected in the Teacher's Manual.

Table of Contents

Acknowledgments, xix
CHAPTER 1--INTRODUCTION TO CLINICAL LEGAL EDUCATION, 1

A. Theory and Practice, 1
B. Skills and Values, 2
C. Experiential Learning, 4
D. The Current Landscape, 4

CHAPTER 2--CLINICAL METHODOLOGY, 7

A. The Problem of the Kitchen Organizer, 7
B. Instructional Settings, 10

1. Live-Client Representation, 10
2. Making and Evaluating Choices, 11
3. Case Supervision, 12
4. Rounds, 13
5. Seminar, 13
6. Simulations, 14

C. Role of the Clients, 14
D. Efficiency, 15
E. Being Vulnerable, 16
F. Trying It Out, 16

CHAPTER 3--GRADING AND EVALUATION, 19

A. Process, Not Outcomes, 19
B. Evaluative Criteria, 20

1. Relationships with Clients, 20
2. Theory of the Client: Development and Implementation, 20
3. Practice Management, 21
4. Oral and Written Advocacy, 21
5. Professional Relationships, 21
6. Professional Responsibilities, 22
7. Reflective Skills Development, 22
8. Participation in Class, 22
9. Participation in Simulations, 22
10. Personal Development, 23
11. Miscellaneous, 23

C. Earning Grades, 23
D. Continuous Feedback, 24
E. Self-Evaluation, 24

CHAPTER 4--ETHICAL ISSUES IN CLIENT REPRESENTATION, 25

Practice Scenario 1, 25
Practice Scenario 2, 27
Practice Scenario 3, 27
Practice Scenario 4, 28
Practice Scenario 5, 30
Practice Scenario 6, 31
Practice Scenario 7, 32
Practice Scenario 8, 33
Practice Scenario 9, 34
Practice Scenario 10, 35
Practice Scenario 11, 36

CHAPTER 5--THEORY OF THE CLIENT, 39

A. Defining our Terms, 39
B. Scope of the Concept, 39
C. Theory of the Case, 40
D. Role of Case Theory, 40
E. The Dynamic Nature of Client Theory, 42
F. Deconstructing Case Theory, 42

1. Factual Theory, 42
2. Factual Theory Versus the "Facts", 42
3. Focus of the Factual Theory, 44
4. The Legal Theory, 44

G. Reunifying Case Theory, 45
H. The Client as a Component of Case Theory, 46
I. Levels of Case Theory, 48
J. Creating a Good Case Theory, 48
K. Starting Wide, Ending Narrow, 50

CHAPTER 6--CLIENT-CENTERED REPRESENTATION, 51

A. Defining the Term Operationally, 51
B. Giving Up Control, 52
C. Uniqueness of the Client, 53
D. Holistic Lawyering, 53
E. Defining the Scope, 54
F. A Helper, Not a Mere Servant, 54
G. Keeping Client Needs Paramount, 55
H. Strengths and Weaknesses, 56
I. Justifying the Effort, 57

CHAPTER 7--INTERVIEWING, 59

A. Importance of Interviewing, 59
B. Goals of Interviewing, 60
C. Inconsistency of Goals, 64
D. Techniques and Choices, 64
E. Stages, 66

1. Background Research, 66
2. Small Talk or Ice-Breaking, 67
3. Introduction or Foundation, 68
4. Overview, 69
5. Development of Initial Theories of the Client, 69
6. Fact Development, 70
7. Conclusion, 71
8. Ordering our Stages, 72

F. Non-Verbal Communication, 72

1. Proxemics, 72
2. Kinesics, 73
3. Paralinguistics, 73
4. Chronemics, 74
5. Personal Appearance, 74

G. Acknowledging our Limitations, 74
H. Minimizing the Harm, 75
I. Constructing our Clients, 76
J. Special Ethical Issues, 76

CHAPTER 8--FUZZY THINKING, 79

A. Defining our Terms, 79
B. Variability of Language, 80
C. Fuzzy Client Theory, 81
D. Applying the Concept in Practice, 82
E. Fuzzy Thinking in a Bivalent Legal System, 84

CHAPTER 9--COLLABORATION, 85

A. Two Heads Are Better Than One, 86
B. Two Heads Are Not Always Better Than One, 86
C. Collaboration as a Skill and Value, 87
D. What is Collaboration?, 88
E. Characteristics of Effective Collaboration, 89
F. Selecting Partners, 90
G. Collaboration and Clinic, 90

CHAPTER 10--FACT INVESTIGATION, 93

A. The Importance of Fact Investigation, 94
B. What Do We Mean by Fact Investigation?, 95
C. Role of Fact Investigation, 96
D. Telling Persuasive Stories, 96
E. The Importance of a Good Story, 98
F. Factors Affecting Persuasiveness of a Story, 99

1. Internal Consistency, 99
2. External Consistency, 99
3. Explanation, 99
4. Adequacy of Detail, 99
5. Emotional Content, 100
6. Socio-Political Content, 100

G. A Caution in Thinking About Factual Theory, 100
H. Factors Affecting Plausibility of a Witness, 101

1. Competency, 101
2. Motive, 101
3. Status, 102
4. Physical and Demographic Characteristics, 102

I. A Caution in Thinking About Witnesses/Evidence, 103
J. Direct and Circumstantial Evidence, 103
K. Trial by Inference, 104
L. Testing our Hypotheses, 105
M. Developing a Fact Investigation Plan, 106

1. What Evidence Should Be Obtained?, 106
2. Where Should that Evidence Be Obtained?, 108
3. How Should that Evidence Be Obtained?, 109
4. What Types of Formal/Informal Discovery Should You Utilize?, 110
5. By Whom Should that Evidence Be Obtained?, 110
6. When Should that Evidence Be Obtained?, 111
7. How Much Evidence is Enough?, 111

CHAPTER 11--COUNSELING, 113

A. Relinquishing Decisionmaking Authority, 113
B. Fuzzy Counseling, 114
C. Counseling Builds on Interviewing, 115
D. Helping the Client Reach a Decision, 116
E. Structure, 116

1. Preparation, 117
2. Ice-Breaking, 119
3. Fact Updating, 120
4. Goal Clarification, 121
5. Presentation and Review of Options, 121
6. Decisionmaking, 123
7. Closure, 124

F. Self-Disclosure, 124
G. Attorney Opinions, 125
H. Barriers to Effective Counseling, 125
I. Transference and Counter-Transference, 127
J. A Process Worth the Effort, 128

CHAPTER 12--NEGOTIATION, 129

A. Negotiation and ADR, 129
B. Importance of Negotiation Skills, 130
C. Expanding our Negotiating Goals, 131
D. What Is Information?, 131
E. Negotiation Builds on Interviewing and Counseling Skills, 132
F. Initiating Negotiations, 132
G. The Place of the Client, 133
H. Choosing a Location, 134
I. Making the Initial Contact, 134
J. In Person or by Telephone, 135
K. Planning and Preparation, 135
L. Determining the Context for the Negotiation, 136
M. Strategy-Style Combination, 137

1. Choosing a Strategy, 137
2. Selecting a Style, 138
3. Factors to Consider in Choosing a Strategy-Style, 139
4. Interplay of Strategy and Style, 140

N. Obtaining and Assessing Information, 141
O. Persuading Opponents, 143
P. Interplay of Persuasion and Strategy, 144

1. Argument, 144
2. Appeal, 144
3. Threats and Promises, 144
4. Threats and Extortion, 146

Q. Getting Down to Real Bargaining, 147
R. The Bargaining Continuum, 147
S. Concessions, 149
T. Impact of the Negotiating Process, 150
U. Closure, 151

CHAPTER 13--ATTORNEY SATISFACTION, 153

A. The Statistics for Too Many, 153
B. The Tyranny of Billable Hours, 154
C. Work in Other Settings, 155
D. Developing a Theory of Ourselves, 155

1. Identifying and Prioritizing, 156
2. Money, 156
3. Political Agenda, 156
4. Power, 157
5. Thrill of the Kill, 157
6. Feeling Good About Your Work, 158
7. Intellectual Challenge, 158
8. Status, 159
9. Having a Life Outside the Office, 161
10. Being a Responsible Partner in a Relationship, 161
11. Being a "Good" Parent, 162

E. Making the Choices, 163

INDEX, 165

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