Lawyering Seminars I, II, and III
These three separate one-semester courses build on each other and are spread over the first two years of study. They are largely experiential, integrating areas of legal doctrine with lawyering skills in various simulated, role-playing exercises, which create ongoing feedback and individualized focus on each student's skills development. In addition to significant feedback and end-of-semester grades, each student receives a narrative evaluation of performance in six competency areas: professional responsibility, theoretic perspective, clinical judgment, communication (oral and written), legal reasoning, and management of effort. The small class size enables opportunities for students to experiment with various lawyering techniques and styles, as well as to use experiences in-role as clients and judges to critically assess the impact of a lawyer's actions.
The Lawyering Seminars' focus is on legal method, legal reasoning, legal writing, professional responsibility, lawyer-client relations, and dispute resolution (including mediation, negotiation, and litigation). The first semester concentrates on understanding the legal system, legal reasoning, writing skills, history and structure of the legal profession, an introduction to the rules of professional conduct, and an introduction to interviewing and counseling. In the second semester, the emphasis is on advanced reasoning and writing skills, formulating the theory of a case, advanced lawyer-client relations, dispute resolution theory, negotiation, advocacy, and a more in-depth examination of selected sections of the rules of professional conduct.
Topics of second-year Lawyering Seminars vary from year to year. Descriptions of the Spring 2014 seminars are listed below.
Community Economic Development
Professor Carmen Huertas-Noble
Professor John Whitlow
The Community Economic Development (CED) lawyering seminar is designed to prepare students for the third-year CED Clinic. While the CED lawyering seminar is not a prerequisite for the CED Clinic, students who have successfully completed the seminar or the Not-for-Profit lawyering seminar will be given a strong preference for the Clinic.
The CED Clinic provides legal support to community-based organizational clients - such as nonprofit organizations, worker-owned cooperatives, and tenant associations - that are creating viable neighborhood institutions and organizing for social and economic justice. The Clinic works with both start-ups and more established organizations on a range of matters - including incorporation, tax exemption, and contract drafting - and provides strategic legal services to tenant associations in support of their ongoing organizing campaigns. Clinic clients have included Make the Road New York, Green Worker Cooperatives, the Acacia Network, and VOCAL New York.
The CED lawyering seminar will have an intense focus on teaching students core lawyering skills within the context of community economic development practice. Through simulation-based work and in-class exercises, students will learn how to identify and resolve practical and ethical challenges, interview and counsel clients, and draft various legal documents, including incorporation and governance documents. Students will focus on key legal areas related to the practice of community economic development law, such as nonprofit corporation law, the Internal Revenue Code, and various aspects of affordable housing. Students will also learn about theories and models of community lawyering, and will get an overview of how community based organizations combine legal services and organizing.
Defender Lawyering Seminar and Clinic
Professor Nicole Smith-Futrell
Professor Steve Zeidman
The Defender Lawyering Seminar is a prerequisite for the Defender Clinic and enables students to zealously and knowledgeably represent indigent teenagers and adults in the New York City Criminal Court and in related prisoners' rights and criminal justice contexts (e.g., parole revocation hearings; criminal appeals; etc.).
The Seminar provides intensive instruction in constitutional and statutory analysis of New York Criminal Law and Procedure. Students learn lawyering and trial advocacy skills, including factual and legal investigation, research and writing, interviewing, counseling, and negotiating. An overview of the criminal process is accomplished by examining every phase of a criminal case, from arrest through trial, and examines the rights of those who are incarcerated.
Class trips and readings expose students to critical stages of a criminal case, and sensitize them to the impact of the criminal justice system on poor communities of color. The pedagogical methodology consists of lecture, discussion, observation, and simulation. In addition to fieldwork and frequent simulations, students explore the special ethical issues that arise in the criminal defense context. They also research and write a memorandum of law that requires rigorous analysis of one or more sections of New York's Penal Law.
All students who successfully complete the Defender Lawyering Seminar are automatically enrolled in the Defender Clinic.
Economic Justice Project
Professor Stephen Loffredo
Professor Lynn Lu
Note: This seminar operates as a live-client clinic. Students enrolled in this seminar will represent project clients at contested administrative hearings, preparation for which will require a significant time commitment. In light of the required academic and clinical commitment, students enrolled in this seminar will receive a total of 7 credits, as explained below.
The Law School launched the Economic Justice Project (EJP) in 1997 in response to the social justice crisis triggered by regressive welfare reform legislation. One of the many tragic consequences of "welfare reform" in New York City is that it forced thousands of welfare recipients who had been pursuing CUNY degrees to quit school in order to fulfill workfare requirements. Most of these individuals were single mothers struggling to obtain the skills and credentials needed for the type of job that could lift their families out of poverty. EJP responded to this challenge on several fronts, providing direct representation to hundreds of CUNY undergraduates, collaborating closely with and supporting the organizing and political efforts of the Welfare Rights Initiative and other grassroots organizations, and engaging in legislative and other systemic advocacy. The theory, genesis and structure of the Project are described in Poverty Law and Community Activism: Notes From a Law School Clinic, 150 U. Pa. L. Rev. 173 (2001). Background and information on the Project's contours and requirements appear below.
Federal "welfare reform" legislation together with regressive workfare policies in New York City have created a crisis for thousands of low-income CUNY students whose families rely on public assistance. Despite overwhelming empirical evidence that post-secondary education is the surest way to "move families from welfare to work," City officials have forced thousands of CUNY students to drop out of college in order to meet stringent workfare requirements. This practice is enormously counterproductive because it prevents welfare recipients from acquiring the education that could soon make them economically self-sufficient. Instead, the City compels these students -- many of whom are mothers with young children -- to trade their education for workfare assignments (such as leaf-raking and litter clearance) that are unlikely to lead to any employment, much less employment that would obviate the need for public assistance. Not only do the City's practices produce tragic personal and public policy outcomes, they have also run afoul of various legal standards, including laws requiring that the city preserve higher education as an option for welfare recipients, laws prohibiting the displacement of public employees with workfare workers, laws mandating work exemptions for certain victims of domestic violence, and laws barring workfare assignments where adequate child care is not available. In response to this crisis the Law School established the Economic Justice Project. From its inception, the Project has worked in close collaboration with a grassroots welfare rights organization -- the Welfare Rights Initiative (WRI) -- based at Hunter College. Together, WRI and the Project have engaged in a broad array of advocacy, educational and social change activity, from individual representation that has permitted over 1,500 CUNY students to remain in school, to organizing, public education, and legislative advocacy that yielded progressive reforms to the State's welfare laws.
Seminar students will participate in all aspects of the Project's advocacy. First, every seminar student will represent individual CUNY undergraduates whose education has been placed at risk by the City's workfare policies. (EJP students work collaboratively in "case supervision groups" typically composed of three interns.) The representation will entail rigorous preparation for and conduct of administrative hearings challenging application of the City's workfare policies to individual clients. Each seminar student will represent three to five clients, with the expectation that the student will have the opportunity to conduct at least two administrative hearings during the course of the semester. These hearings are adversarial evidentiary proceedings at which seminar students will present direct testimony and documentary evidence, cross-examine opposing witnesses, make appropriate procedural and substantive objections to adverse evidence and offer oral and written argument. When necessary, we will contest the legality of the City's workfare policies through appeals.
Seminar students will also participate in a "project workgroup" that engages in some broader form of advocacy. The representation provided by the project is one component of a coordinated advocacy response that includes litigation (by a coalition of public interest law offices), recipient organizing and political action (coordinated by the Welfare Rights Initiative), and legislative and administrative advocacy. We have established collaborative relationships with Community Voices Heard, Connect NYC, the Urban Justice Center, the Legal Aid Society, the Empire Justice Center, the National Center for Law and Economic Justice, and various legal services offices. In addition, we will continue to use the data and insights gathered by seminar students in the course of conducting individual hearings to support and advance education, outreach, litigation and legislative efforts. In some instances, the hearing records that seminar students develop may form the basis for factual allegations, legal claims or enforcement efforts in law reform suits and/or the empirical basis for policy-oriented studies or legislative advocacy.
In recognition of the substantial time that students must devote to preparation and provision of live client representation, this seminar is coupled with a co-requisite 3-credit course on Public Benefits. The two separate courses are actually taught together as one 7-credit program.
We will devote the first weeks of the seminar and course to intensive trial skills training and substantive law study that will prepare seminar students for their representation of the actual clients. This segment of the seminar will include some mock hearings and coverage of the key substantive legal areas, including (1) procedural issues related to welfare recipients' statutory and constitutional hearing rights; (2) substantive issues related to recipients' rights under the governing social welfare laws; and (3) labor-related issues, such as minimum wage and hour laws. In addition, students will consider how the targeted provision of representation at these administrative hearings might be tailored to operate most effectively in the overarching advocacy strategy. For instance, students will learn how to develop an administrative record in light of the different options for judicial review, including Article 78 proceedings or plenary actions in state court and class actions in federal court. Finally, each student will participate in a full, simulated hearing -- based, if possible, on an actual, upcoming hearing -- and will produce a substantial post-hearing legal memorandum.
Once the actual hearings get underway, seminar time will be devoted largely to issues that arise from the representation. Students will jointly assess hearing strategies, techniques and results, address new developments, and assist each other in the preparation of any particularly novel or difficult cases. At this point in the semester, the co-requisite course on social welfare law and policy will turn to a fuller examination of the historical, political-economic and policy contexts of the current welfare/workfare reforms, and will consider a number of critiques from an array of theoretical perspectives.
Mediation Training for Law Practice
Professor Beryl Blaustone
This lawyering seminar will focus on the theories of mediation, the development of mediation skills, applications to different substantive areas and the development of a critical lawyering perspective on the use of this process. Students who pass this course will receive a certificate stating that they have successfully completed a course in mediation training for law practice.
The use of mediation processes and mediation techniques within the legal system and in society generally has increased dramatically in the last thirty years. There is hardly any area of law practice where these processes are not operating. It is now common for lawyers to participate in mediations as advocates as well as serve as mediators, and many law firms designate one of their lawyers as a specialist who provides third-party intervener services. These specialists also assist trial attorneys in strategizing the handling of cases. There are now several successful national firms specializing in the mediation of particularly complex legal cases in such areas as discrimination, torts and commercial transactions. Furthermore, many private practitioners function in some cases as litigator and in others as mediator. Federal law requires federal district courts to incorporate these processes in civil litigation. Both state and federal courts commonly employ mediation or variations thereof in their settlement and diversion processes. Both state and federal administrative agencies are using mediation in their rule-making and adjudication processes.
The mediation process will be turned to by some lawyers more frequently than by others. Nevertheless, all lawyers should understand what mediation is, along with its limitations, so that they can make informed decisions regarding: when to use it, when not to use it, when to draft mediation clauses into legal documents and when to support or oppose particular legislative and judicial initiatives. It is also to the lawyer's benefit to consciously incorporate many of the skills commonly regarded as mediation techniques into his/her daily professional tasks. These skills promote proficiency in many of the core techniques for any good legal fact investigation and enable an attorney to move beyond the limits of adversarial positions and argumentative techniques. However, because the use of mediation skills leads to a fuller understanding of a dispute, these same skills contribute to better performance in adversarial proceedings as well.
This seminar examines all stages of the mediation process, focusing in particular on the functions of the mediator in each stage of the process. We will also devote significant attention to practicing the range of skills involved in doing mediation. Specifically, we will practice: opening statements and starting the process; effective listening and thorough fact investigation; issue framing; agenda-setting; brainstorming; evaluation of settlement options; and drafting of negotiated settlements. We will develop these skills as we prepare for and conduct a full, simulated mediation hearing. I also plan to have leading practitioners meet with us to discuss their significant cases and to give suggestions for career development in both the public and private sectors.
I began my mediation practice over three decades ago. I have taught mediation at several law schools and have conducted mediation trainings nationwide. I have served on several national, state, and local committees in the field. I continue to mediate employment discrimination, disability issues, attorney-client disputes and work-place disputes. My background is in these areas in addition to the broader range of case we handle in the Mediation Clinic. Students will thus be exposed to the current "hot" legal and policy debates taking place in the courts, the organized bar, and organized professional third-party neutral organizations.
Students who take this course will be given strong preference for admission as third year law students into the Mediation Clinic, Main Street Legal Services, Inc. There will be an application process including an interview for those students who wish to enroll in the Mediation Clinic in their third year who have not taken this lawyering seminar.
Interested students should feel free to contact Professor Blaustone.
Representing Non-Profit Organizations: Lawyer as Facilitator, Counselor, Evaluator and Planner
Professor Dinesh Khosla
Non-profit organizations have been influential in American society since colonial times. They wield considerable influence on various aspects of social and political life. They employ approximately 7% of work force in this country and generate revenues estimated at 9% of the gross national product. A large number of our graduates and current students work or aspire to work for non-profits that provide a range of services and are engaged in social reform activities.
This seminar teaches the legal processes and requirements of formation, dissolution, operation and governance of the non-profit organization. We also study the regulations impacting charitable solicitations, tax exemptions of non-profit organizations and private foundations (a vehicle increasingly used by the wealthy to promote their charitable agendas. For example the Bill Gates Foundation, Clinton Global Initiative, etc).
This lawyering seminar will engage students in a wide range of tasks lawyers representing not-for-profits are called upon to perform. Students will engage in a wide range of activities such as the interviewing and counseling involved in pre-formation planning and decision-making; drafting articles of incorporation, mission statements, by-laws; preparing the filings necessary to obtain 501(C)(3) status; collecting and evaluating information and data to assist the organization in developing efficient internal governance processes and evaluating the effectiveness of their operations; reading and interpreting financial reports and business plans; learning to lead the organization. Students will be encouraged to draw on experiences and connections they have with not-for-profit organizations for use by the class and/or on individual projects to provide real-life context for this learning.
Ideas relating to the non-profit sector are conceived and executed in this seminar. In the last five years at least six new organizations were created by members of this seminar. Among the well known are COMMON LAW, SEVA, GAY AND LESBIAN ELDER SERVICES ORGANIZATION, TAX JUSTICE FOR RENTERS (in process), A CLEARING HOUSE FOCUSED ON THE FAILURES OF HMO'S TO REIMBURSE.
Dinesh Khosla is the Executive Director of the SDK Foundation for Human Dignity which provides for the educational and basic needs of poor children, and funds program activities to promote cross-cultural understanding. Professor Khosla has been instrumental in the rehabilitation of approximately 2,000 apartments with the goal of providing affordable and dignified living conditions for those with limited incomes. He has also been successful in creating and supporting over 20 projects in rural India aimed at economic and social liberation of the poor. He is a founder of India Heritage Center, a new not for profit organization, dedicated to building a Museum of the Journey of People from India to the United States.
Trial Advocacy (Criminal Litigation Skills)
Professor K. Babe Howell
In this course, students work with simulated materials to prepare, execute and critique each of the important segments of a criminal trial, and learn the important interplay of courtroom advocacy skills and legal analysis. Students will research, write, and revise a substantial brief.
Students work in pairs to prepare for and conduct two trials (as prosecutors for one trial and as defense attorneys for the other). Teams must develop a theory of the case, prepare for and conduct jury selection, deliver opening statements, prepare witnesses for direct and cross examination, prepare and deliver or respond to a trial order of dismissal, draft and submit proposed jury instructions and deliver a closing statement.
In preparation for the simulated trials, some seminar sessions will focus on particular trial skills such as witness preparation, objections, impeachment and use of exhibits. In addition, the students will read and apply law on substantive criminal offenses, evidentiary issues, jury selection, ethical issues and use of experts. The seminar will also address ethical issues in criminal practice with particular attention given to the ABA Standards for Defense and Prosecution Functions. The teaching methods include, courtroom observations, guest lecturers, classroom discussions, peer critique, jury instruction drafting exercises, lectures and simulation exercises.
Trial Practice: Tactics and Methods
Professor Merrick Rossein
A trial may be viewed as a competition of inconsistent versions of facts as applied to theories of law. But a trial can capture much more of the human condition than this sterile definition suggests. The Trial Tactics and Methods Seminar is designed to introduce second year students to the theory, skills, and tactics involved in the preparation and presentation of a case for trial, whether it be in an administrative, civil or criminal context. We will examine the tactics and techniques used by the trial attorney to persuade the finder of facts that a particular version of the facts should be believed and that the law favors her client. We will also examine the dynamics of a trial and the professional role of an attorney, including different styles of lawyering and attention to ethical and professional responsibility issues.
The pedagogy of the course is structured on the key components of a trial. We will approach each subject from a theoretical and practice perspective, with lecture, discussion, problems and exercises. Students will be required to perform weekly role playing as we learn the many different tasks of a trial attorney, such as conducting depositions to obtain the facts, obtaining documents through discovery procedures, jury voir dire, opening and closing arguments, examining experts, and direct and cross-examination. During the semester, students will also write a memorandum of law on a motion in limine, dealing with several evidentiary issues, and will argue the motion. Further the student will prepare a "trial notebook" and pre-trial memorandum for the court. We will examine the developing "electronic" courtroom and learn how to use the electronic display of evidence in the courtroom through the Sanctions software program. The semester will end with a jury trial. Guest trial lawyers, including some of the leading trial bar, will demonstrate various trial skills and critique the students' performance of those skills. The class will also observe and critique a trial in court.
Professor Rossein tried major federal court jury trials, as well as many other trials in the past. United States District Court Judge Weinstein in Leibovitz v. New York City Transit Authority, 1999 WL 167688 (E.D.N.Y., Feb 25, 1999) (NO. 95 CV 3860 (JBW)) wrote in an Order and Decision after Professor Rossein tried the case that: "Counsel [Rossein] for plaintiff is an extraordinarily able attorney specializing in discrimination litigation. Counsel was dealing with a difficult area in this field. He showed extraordinary skill." Two CUNY Law students assisted Professor Rossein in that trial.
For the past few years following participation in Professor Rossein's Trial Seminar, two teams of four third year students participated in the American Bar Association's Section on Labor and Employment Regional Trial Competition conducted at the U.S. Courthouse in Manhattan. The teams were coached by Professor Rossein and alumni of his Trial seminar. One team defeated a team from Columbia University Law School to take first place in a trial conducted by U.S. Magistrate-Judge Peck. Another team lost a 2-1 jury verdict in the finals taking second place among ten area law schools. The experience and feedback from expert trial lawyers was invaluable and the notation on the students' resumes enhanced their seeking post-graduate law positions. Professor Rossein is teaching an Advanced Trial Practice Seminar this year for the two teams (eight students) participating in the 2013 competition.
Writing from a Judicial Perspective
Professor Andrea McArdle
Imagine a judicial system in which there were no judicial opinions, in which courts heard and decided cases but merely announced outcomes without committing their rationales to writing. What would we lose if we no longer had the benefit of a court's written analysis of the reasons for its rulings? What would be the effects on the development of legal doctrine? How would litigants and their advocates gain access to the basis for judicial decision making?
This writing-focused Lawyering seminar will address these and other questions implicated in the drafting, analysis, and use of judicial opinions. Its focus and areas of inquiry may be of particular interest and relevance to students considering judicial clerkships and internships and to students interested in advanced advocacy. Areas of inquiry will include the nature of judicial authorship, and the roles that judicial clerks play in the conceptualization and drafting of opinions; clerking and confidentiality; the audiences that judges write for, and how considerations of audience shape judicial writing; the role of empathy in judging; the lack of a consensus-based tradition (or what some would consider a privileging of the separate statement) in U.S. appellate opinions, and the issues created for courts and advocates in interpreting and using separate opinions from a single case; the function of amicus curiae briefs; the manifestation of social-justice perspectives in judicial writing; the relationship between judicial philosophy, including judicial activism, and judicial writing; framing law and using facts in opinion writing; the effect of precedent/revisiting stare decisis; the trend toward courts' drafting "unpublished" opinions and the status of these opinions as precedent; the use of social science evidence; and identifying a judicial voice.
The course will pay close attention to the "practice" of judicial writing with assignments that include drafting a bench memo and an opinion in a pending United States Supreme Court case. Students will also hear oral argument on the case and participate in a "bench conference" to discuss the issues, the legal standards, the evidence, and the policy implications of various possible rulings. The seminar will engage in close readings of judicial opinions illustrating key themes of the course (including notably Bush v. Gore and Planned Parenthood of Southeastern Pennsylvania v. Casey), and will analyze writing by judges and other legal scholars related to the areas of inquiry noted above. We will also analyze discourse from recent U.S. Supreme Court confirmation hearings relating to conceptions of judicial role. In addition to taking up these issues from the perspective of judges, we will consider them from the vantage point of advocates who use judicial opinions in their own written argument, and who must anticipate, and try to influence through written argument, the way judges write opinions in the cases that they argue.
From time to time during the semester, judges will visit the seminar and discuss their approaches to opinion writing. Seminar students will also choose an additional writing project, which, with approval of the instructor and subject to availability, may include a short-term placement with a New York City-area court or administrative tribunal, during which students draft a judicial writing. Alternatively, students may complete a paper/written project related to one of the themes of the seminar after approval by the instructor. Given the substantial time commitment required by the research and writing component of a judicial placement, and the need for students in placements to have greater schedule flexibility/availability, considerations in approving a judicial placement include but are not limited to a student's academic status and course load. Students who have participated in short-term placements have worked with or for judges in the Appellate Division, First and Second Departments, Manhattan Supreme Court, Manhattan Surrogate's Court, New York City Civil and Criminal Courts, Queens Family Court, Brooklyn Family Court, Brooklyn Supreme Court, Brooklyn Surrogate's Court, Bronx Supreme Court, Bronx Civil Court, Queens Criminal Court, Queens Supreme Court, Westchester County Court, various federal courts in the Eastern and Southern Districts of New York, the Office of the Staff Attorney for the Second Circuit Court of Appeals, and the New York City Office of Administrative Trials and Hearings, among others. Short-term placements typically span 7-8 weeks starting in the third or fourth week of the semester.
This seminar will provide an opportunity to develop legal writing, research, close and critical reading, and analytic skills, an exposure to the workings of the courts, and a deeper analysis of strategies of advocacy drawn from insights into judges' responses to written and oral argument.