Creative Problems, Engaged Students:
A Process-Oriented Approach to
Designing Legal Writing Problems
Mary Bowman
Janet Dickson
Seattle University School of Law
June 9, 2006
Introduction
• Why are creative assignments helpful?
– Keeps students engaged
– Keeps students connected to you and to each
other
– Keeps teachers interested
What Do We Mean By Creative?
• Factually creative, without necessarily involving
novel legal issues.
– The facts can be interesting, current, engaging,
broadening, thought-provoking, or entertaining
– Even when the legal issue is more traditional.
• For example, we used a problem that dealt with
a wife’s ability to inherit her husband’s property,
when he had a sex-change operation several
years before he died, and they remained
married.
Adaptability
• Why does this process work for designing
creative legal writing problems for different
types of programs and different types of
assignments?
– You bring in the creative idea to fit your
needs.
– The creative idea is not the central purpose of
the assignment.
Goal Setting: Putting the
Horse Before the Cart
Pedagogical Goals: what do you need your
problem to accomplish?
– Research
– Analysis
– Organization
– Writing
Goals for Teaching Research and
Analysis
• Research – e.g. strategies, statutory
versus common law, open versus closed
universe, books versus electronic sources,
free versus paid sources, primary versus
secondary sources.
• Analysis – e.g. identifying issues, breaking
law into elements, identifying legal rules,
describing cases, crafting arguments,
predicting the likely outcome.
Goals for Teaching Organization
and Writing
• Organization – options for organizing a
discussion section, placing rules versus
case descriptions versus arguments
versus conclusions, organizing arguments.
• Writing – persuasive versus predictive
writing (audience and purpose), precision,
conciseness, correct mechanics
(grammar, punctuation, citation).
Planning Ahead to Put the Pieces
Together Effectively
• Lots of Variation Among Programs
• Within a Program, Spiral Curriculum
• Importance of Advanced Planning
– Fit a fun problem into the best slot during the year
– Create an effective package of problems throughout
the year
– Accomplish other goals (e.g. use both civil and
criminal problems, adapt assignments to particular
class’s interests)
Excellent Sources on Goal Setting
• Grace Tonner & Diana Pratt, Selecting and
Designing Effective Legal Writing Problems, 3
Legal Writing: J. Legal Writing Inst. 163 (1997).
• Helene S. Shapo & Mary S. Lawrence,
Designing the First Writing Assignment, 5
Perspectives: Teaching Legal Research and
Writing 94 (1997).
• Lorraine Bannai et. al., Sailing Through
Designing Memo Assignments, 5 Legal Writing:
J. Legal Writing Inst. 193 (1999).
Steps to the Process
•
•
•
•
•
Trigger Idea
Initial Research
Define the Issue
Create the Fact Pattern
Present the Fact Pattern
Initial Triggers
(The Seed)
• Something that
– surprises or shocks you
– makes you angry
– makes you compassionate
– provokes and really stirs you
– makes you laugh out loud
Examples
• Often bothered by people approaching to sign initiative
petitions
• T.V. talk show about a heterosexual woman who
remained married to a man who had a sex change
operation
• Medical marijuana legal in some states, but not in U.S.
generally
• Spoke with a friend about the sale of her business,
triggered conflict of interest issues
• The “new” idea of botox parties
• Article about how businesses can target their good
internet customers and charge them more
Sources for Trigger Ideas
•
•
•
•
•
Reading the paper
Listening to the news
Overhearing a conversation
Watching Oprah
Reading a current affairs book
Moving from the Trigger Idea to
Other Options
• Why not stick with the trigger idea?
• Brainstorm other legal issues that could be
based off the trigger idea.
Brainstorming Examples
Trigger Idea
• Latinos fired for leaving work
early to attend immigration
rally
Excerpt from Newspaper Article
• From an article in the Seattle Times by Sanjay Bhatt
A Monroe-based home-painting contractor fired more
than a quarter of its employees — all of them Latino —
Tuesday morning, a day after the painters left work two
hours early to attend Monday's immigration rally in
downtown Seattle.
The company, Laitala Enterprises, and the fired
workers agree on this much: That the workers told their
foreman Monday morning of their desire to attend the rally,
that they left early, and that their departure didn't delay the
schedule of a painting job in a Fife subdivision.
• The article then talked about the workers meeting at their
union headquarters in an effort to force the company to
rehire them.
Another Brainstorming Example
• A recent headline: “Now in foreground:
jurors’ backgrounds”
• Excerpt from the article: “Lack of truthfulness
on jury questionnaires is a growing problem
that is prompting calls for criminal
background checks of jurors.”
•
Monday, May 8, 2006 Tresa Baldas/Staff reporter
Brainstorming Activity
• Break up into groups of four to five people
for the following activity:
– Introduce yourselves to one another.
– Spend 5 minutes brainstorming ideas within
your group for memo problems based on the
following trigger idea.
– Assign one member of the group to report
back to the group.
Excerpt from “Lawyers play their hand with poker law”
By Tresa Baldas, Staff Reporter
National Law Journal, January 2, 2006
TEXAS HOLD ‘EM poker is keeping lawyers busy these days,
but not at the tables.
The wildly popular card game has created a buzz about the
legality of using poker tournaments to raise money for charitable
causes. Over the last year, organizations nationwide, from schools
to churches to plain old poker-junkie groups, have turned to lawyers
for help in battling what they deem as rigid charity poker laws.
While poker tournaments have proven to be huge money
makers for many charitable causes, not all states allow poker
fundraisers, and authorities are increasingly cracking down on
groups that try to host them.
In California, for example, a business association recently was
forced to cancel a poker fundraiser for a local library after state
authorities sent notice that the event was illegal.
In Texas, a poker tournament for breast cancer was canceled
due to legal issues. And in Oregon, a mother trying to raise money
for her kids’ school through charity poker ran into similar opposition.
Preliminary Research
• Use to Sort through Possible Ideas
• Research Considerations
– availability of secondary sources (useful? too
useful?)
– number of primary authorities (“Goldilocks”
approach)
– complexity of primary authorities
– likely wrong turns
– jurisdiction
Creating the Fact Pattern
• Define the Issue For the Students
– Clearly define the issue to be researched and
analyzed.
– Consider including language to head off
wrong turns.
– Then focus on what facts you need to include
in your fact pattern.
Creating the Fact Pattern
• Generating the Fact Pattern
– Start with ideas about facts from trigger idea.
– Refine facts based on results of research,
with arguments in mind.
– Try to make the fact pattern as realistic as
possible.
Social Justice/Diversity Setting
• Why this can be a good idea
• How to do it
– Choice of issues
– Names
– Contextual facts
• Dangers to consider
• Talking to students about issues raised
Some Dangers to Avoid in Using
this Creative Process
• Don't make the problem too analytically difficult
(e.g. not enough law out there, the law that is out
there is too tough for the students).
• Don't make the research too hard.
• Don’t make the problem too broad or too narrow.
• Don't put novelty before pedagogical goals.
• But don't make the setting too boring either.
• Don't be too rigid in your expectations
(adaptability is key).
Presenting the Facts
Some ways to go beyond presenting the
facts in the form of basic interview notes.
• create a case file
• use transcripts
• consider a video presentation
Presenting Facts
Using Case Files (Masekala Problem)
INTEROFFICE MEMORANDUM
TO:
LEGAL INTERN
FROM: SUPERVISING ATTORNEY
DATE: AUGUST 22, 2005
RE:
MAYA MASEKALA, FILE NO. 05-118
POSSIBLE CONFLICT OF INTEREST ISSUE
Maya Masekala, has taught Kindermusik classes in West Seattle since
August of 2000. During this period, she has worked for Carla Fontana, who
owns the Laugh and Play Kindermusik business for which Maya teaches. Carla
recently approached Maya about whether she would like to buy Laugh and Play
Kindermusik.
Maya is very interested in the opportunity to buy the business, but she is
concerned about some of the legal and financial matters regarding Carla’s
operation of the business. In particular, she is concerned about some of the
employment law issues. Maya would like me to review these issues, helping her
with the due diligence and the purchase and sale agreement in connection with
this transaction. The current owner of the business, Carla Fontana, would be
the adverse party in this matter.
Information from Client Interview
(Masekala Problem)
INTEROFFICE MEMORANDUM
TO:
FILE
FROM: SENIOR PARTNER
DATE: JULY 8, 2002
RE:
CARLA FONTANA, FILE NO. 0271-96
CLIENT INTERVIEW REGARDING BREACH OF NONCOMPETITION AGREEMENT
Notes to file re. interview with Carla Fontana, owner of Laugh and Play
Kindermusik (LPK), re. breach of independent contractor agreement.
– CF owns LPK. Provides music and movement classes for infants – 7 yr. old kids.
Emphasizes child development principles. Standardized curriculum, from
Kindermusik International. LPK provides materials teachers need to teach the
curriculum (instruments, books, scarves, toys, arts & craft supplies, etc.).
– CF teaches LPK classes 3 mornings a week in Ballard. 4 other teachers work for
LPK, teaching classes in a total 7 other locations throughout Seattle. CF
negotiates leases for the classes and hires teachers to staff the locations. CF
also does the rest of the administrative side of the business.
Supplying Law That Is Related But
Not At Issue (Masekala Problem)
INTEROFFICE MEMORANDUM
TO:
LEGAL INTERN
FROM:
SUPERVISING ATTORNEY
DATE:
AUGUST 22, 2005
RE:
MAYA MASEKALA, FILE NO. 05-118
BASIC LAW ON COVENANTS NOT TO COMPETE AND THE DISTINCTION BETWEEN
INDEPENDENT CONTRACTORS AND EMPLOYEES, FOR PURPOSES OF
EVALUATING THE POTENTIAL CONFLICT OF INTEREST
Please use the information below to help you evaluate the conflict of interest issue, and do not
do further research on these topics.
Enforceability of Non-Competition Agreements
Washington courts will enforce non-competition agreements, also called covenants not to
compete, when the agreements are reasonable. Perry v. Moran, 109 Wn.2d 691, 698, 748
P.2d 224 (1987). “Whether a covenant is reasonable involves a consideration of three
factors: (1) whether restraint is necessary for the protection of the business or goodwill of
the employer, (2) whether it imposes upon the employee any greater restraint than is
reasonably necessary to secure the employer's business or goodwill, and (3) whether the
degree of injury to the public is such loss of the service and skill of the employee as to
warrant nonenforcement of the covenant.” Id.
Providing Legal Documents
(Masekala Problem)
INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT (the
“Agreement”) is made as of August 1, 2000, by and between Laugh and
Play Kindermusik (“Laugh and Play”), a Washington sole proprietorship with
its principal place of business in Seattle, Washington, and Maya Masekala,
an individual, whose address is 4516 40th Avenue Southwest, Seattle,
Washington, 98116.
In consideration of the promises made by each to the other, Laugh
and Play and Ms. Masekala agree as follows:
AGREEMENT
A. Responsibilities. Ms. Masekala shall have the following responsibilities:
(i) teaching approved Kindermusik classes to groups of between five and fifteen
students at a time; (ii) collecting tuition payments from each parent once a
semester; (iii) maintaining your Kindermusik license through Kindermusik
International; and (iv) carrying out other duties incidental and/or relating to the
listed duties above. Ms. Masekala will determine the number of classes she
wishes to teach each semester, as well as the method, details, and means of
performing the above-described services.
Presenting Facts Using Transcripts
THE COURT: When the fire occurred, there was some media
coverage, including both television and newspapers. Does anyone
recall reading about the fire in the newspaper or seeing anything about
it on television? OK. I see a few hands. Juror No. 26, Mr Bickel. Juror
No. 15, Mr. Jackson. Let’s start with Mr. Bickel.
JUROR 26: Yeah, I think I remember reading about it in the paper
when it happened, but I don’t really remember any of the details.
THE COURT: Did you read about how it happened or who was
accused?
JUROR 26: I might have, but like I said, I don’t really remember
any of the details.
THE COURT: Do you think you can judge the case solely on the
evidence that’s presented here in court and not on what you read?
JUROR 26: Yeah, I’m sure I can because I really don’t remember
much about what I read.
THE COURT: Thank you, Mr. Bickel. Next, Juror 15, Mr. Jackson.
JUROR 15: Well, I didn’t actually read about the fire in the paper,
but I heard about it from some friends at the mosque that my wife and I
attend.
THE COURT: What did you hear?
JUROR 15: First I heard that the police though it might be a hate
crime, but then I heard that the owner was accused of setting the fire.
THE COURT: Do you know Mr. Akram or know anything else
about him?
JUROR 15: No, I don’t.
THE COURT: Do you think that what you heard will influence your
ability to be fair and impartial in this case?
JUROR 15: No, I don’t.
Presenting the Facts
Video Presentation (Internet Jurisdiction)
Presenting the Facts
Video Presentation (Gender Problem)
Conclusion
• Start with clear pedagogical goals.
• Look for trigger ideas.
• Brainstorm other legal issues that can flow
from a trigger idea.
• Clearly identify the legal question the
students should research.
• Think about interesting ways to present
the facts.