Educational Goals of the Center for Applied Legal Studies
Objectives of the Clinic
Our Office Manual begins where we begin most tasks at CALS — with an effort to define our goals. Immediately, a distinction becomes necessary between the goals of CALS as an institution and the goals of its individual members. To a very large extent, CALS tries to serve the educational goals of its students. We ask applicants to state their goals, in a preliminary way, as part of the application process. We ask students to define their objectives again during the first week of the Clinic’s operation. And we make a great deal of effort to individualize our teaching in order to accommodate the particular learning objectives of each student.
At the same time, CALS has its objectives too. It attempts to cement some aspects of learning to which students have been introduced in other courses, and to offer certain other kinds of learning that are not approached anywhere else in the law school curriculum. CALS’ goals may coincide completely with those of some students. But for most students, some of CALS’ goals will mesh well with what they want to do, while other objectives will involve work that they never contemplated doing, and still other institutional objectives may clash with their personal learning goals.
At the outset, then, we want to disclose CALS’ institutional goals as explicitly as possible, for two reasons. First, for potential CALS applicants (to whom this chapter is distributed), we want to disclose these goals so that they can better decide whether they want to spend a semester at CALS, or whether some other clinic would be more suitable. Second, for those who become CALS students, a statement of CALS’ institutional goals will help explain why we use the teaching methods described elsewhere in this manual (e.g., the CALS Case Team Method and the classroom exercises and discussions).
The fact that CALS has its own educational goals explains an otherwise paradoxical phenomenon. CALS gives its students a great deal of autonomy and authority (more than in most other law school courses), and yet student authority is, in some respects, strictly limited (e.g., by our standards of practice and by the requirements of the Office Manual and Assignment Manual).
Specifically, law student representatives have a lot of authority over the conduct of their cases but relatively little authority over the educational structure. This distribution of authority is not random. We permit you and your clients to make decisions (such as whether to try to arrange for a particular expert witness to testify or what documents to offer into evidence) because, after only a few weeks of work on a case, you will be far more expert than we are with respect to the needs of your clients and the facts and law of your cases. But our relative expertise is reversed when it comes to designing an educational framework. We have devised an educational program, including, for example, weekly assignments and a pedagogical structure (the relationships described in the CALS Case Team Method) that we think (based on our experience as educators) is likely to advance the goals set forth here, while also giving you the opportunity to formulate and to advance your own learning objectives. We do not permit students to decide to skip assignments or to eliminate an aspect of the curriculum (e.g., the study of ethical dilemmas), because we have greater experience (and are responsible to the Law Center) with respect to the overall educational program reflected in this statement of goals. (Of course, we are always interested in hearing students’ suggestions for changes in the educational program, and much in our structure is the result of previous students’ suggestions. But decisions about CALS’ institutional goals and about the educational design most likely to achieve them — other than those decisions that are delegated to students in the Office Manual or in the CALS Case Team Method — are made by the advisors).
Here, then, are the goals that we have defined as goals of the institution. Although the list is long, we think that there is plenty of time during the semester in which to pursue not only all of these goals, but students’ individual goals as well.
1. Learning to assume responsibility for clients.
Perhaps the most striking difference between CALS and non-clinical courses at the Law Center is that here you have responsibility for matters of great importance to real clients. Learning to accept and to assume that responsibility is a profoundly difficult task, and CALS strives to help you to achieve it. For example, you are likely to struggle with questions such as which decisions you should make for a client and which you should leave to her or him; how closely to keep a client informed about what you are doing; what you should do if you think that your client is not telling you everything he or she could; how to advise your client when every possible course of action involves some degree of risk; and how to balance the demands of your clients’ cases against all the other demands on your time. At CALS, the advisors constantly encourage you to consult all available resources (including your own feelings) on these and similar questions, and then to make explicit decisions about them. The advisors will help you to question those decisions, whatever they are, but, in most circumstances, they will not make them for you.
2. Learning a new area of law.
Almost all CALS law student representatives will be newly encountering the intricacies of immigration law. Learning to practice in a hitherto unfamiliar area of law is an important legal skill. You will learn the terminology, institutions, doctrine, and folkways of one or more subsystems of the American legal landscape, and along the way, you will have the opportunity to observe how you are absorbing this new culture so that the next time you encounter a new subsystem, you can learn it efficiently and with a critical perspective.
3. Learning to manage a big project.
Representing a client in an asylum case is a massive project. You will be simultaneously working with a client, gathering facts, researching law, drafting affidavits and other documents, locating and working with expert witnesses, navigating through ethical problems, writing a brief, and preparing for an adversarial hearing. The project will require planning for meeting a series of deadlines as well as dealing with unexpected developments as they occur. You will distill thousands of pages of information and many interviews into a few hundred pages of evidence and a few dozen pages of legal analysis. If you have never before had to manage a long-term project of this magnitude, you will learn how to do it in this clinic, and the planning skills that you work on in CALS will be transferable to all of the large projects that you undertake in the future.
4. Performing a valuable public service.
Serving people in need without charging a fee is one of the most important ethical responsibilities of lawyers and can be very rewarding on a personal level as well. The work that you do this semester may enable a refugee to remain in the United States rather than being deported to a country in which his or her life or freedom would be in jeopardy.
5. Improving problem-solving abilities.
At CALS, your case load is very low — lower than the case load at practically any other clinic in the United States. The reason the case load is kept so low is to enable you to practice law in slow motion, so that you can examine with great care every step you take. We guide you in examining with exhaustive care every detail of what you do on a case. By solving problems more slowly (e.g., by taking an hour to make a decision that a busy practicing attorney would make in a minute), we think that you will not only make better decisions but also that you will learn a decision-making process that can later be applied to problems that are far more complex.
Of course, you have been making decisions all your lives, and you know a lot already about decision-making. But decision-making in the context of legal practice is often more difficult than decision-making in everyday life. One reason for this, of course, is that decisions have to be made within the context of often unfamiliar and non-intuitive legal doctrine. Another reason is that decisions usually have to be made on the basis of a lot of uncertainty about the facts, in part because the facts as understood by a client or witness keep shifting, in part because of each person’s changing perceptions and memories, in part because every person’s version of an event is different, and in part because your adversary may be doing her best to keep you from knowing all the facts when you want to know them. And another complicating factor is the reality that you are now acting in a professional representational capacity, where your skills and choices have consequences not only for yourself, but for a client, a partner, and a law office.
Early in the semester, CALS will introduce you to a model of planning and decision-making, and will encourage you to experiment with it in your cases. The model emphasizes deliberate planning rather than working from hunches; identification of all possible options (including less conventional ones); assessment of relative advantages and risks of each; identification of what further research can be done to reduce the risks; appreciation of the effects of time pressure, interpersonal factors, and emotions on the decision-making process; and constant re-evaluation of decisions as facts change. Whether or not you ultimately embrace or reject this way of working, teaching you how to engage in it is high on CALS’ list of priorities.
6. Improving collaboration skills.
There is a striking dissonance between the competitive individuality of most law schoolwork and the fact that real legal work is rarely done alone. Lawyers usually tackle problems in small groups (e.g., three or four lawyers working together on a case
or a small task force in a government agency) within larger organizations (e.g., a law firm, a corporation, or an agency). The reason for this constant collaboration is that joint effort usually produces better results (albeit with the expenditure of more time) than individual work. Learning to work with a partner and with the other members of a larger work group is a critical skill, yet it is one that is not usually taught in law schools.
CALS is an environment particularly suited to learning how to collaborate on a legal task because virtually all CALS work is done in partnerships or larger groups. You will also have opportunities to discuss why your partnership and your case team are operating effectively or ineffectively and to try various methods of improving the quality of the collaboration. And through our “rounds” classes and conversations in the clinic’s student work room, you will have the opportunity to work not only with the client for whom you and your partner have primary responsibility, but also to collaborate with the other students in the clinic and contribute to their work. We encourage you to collaborate in problem solving, as well as in helping each other with other aspects of your cases, including mooting and compiling, copying, and tabbing documents in preparation for court submissions.
7. Learning about contemporary issues in immigration law and policy.
Immigration policy is at the heart of one of the liveliest political controversies in American society today. While you and your partner work on your case, thousands of other lawyers and activists around the country will also be working on behalf of immigrants and refugees through individual litigation such as you are doing, class actions and other test cases, and administrative and legislative lobbying. We want you to read about and explore the ongoing conflicts over immigrants’ rights and the structure and procedures of the agencies that deal with immigrants (including the court system in which you will be litigating), so that you can relate the work you are doing to the political struggles in which countless others, including many graduates of CALS, are currently involved.
8. Obtaining experience in working with someone from another culture.
CALS’ clients who are seeking asylum have come from other countries and grown up in many different cultures. Some of them are dissidents within their own societies. They may have opinions about authority, institutions, lawyers, and students that are very different from your views. Communicating with them and helping them to express information effectively to an Asylum Officer or Immigration Judge may involve language and other more subtle differences. We want to help you learn how to identify and bridge those differences, because you will encounter similar issues in the future with clients and others, whether or not you ever again represent people who have recently come from other nations. Representing someone from a culture different from our own should also prompt us to examine our own culture, background, and the various types of privilege that we may bring to the representation. These differences may include race, gender, class, sexual orientation, education, language, etc.
9. Learning from feelings.
The transition from the role of student to the role of lawyer is a period of rapid emotional as well as intellectual change. Most law school courses do not give explicit attention to the emotional aspects of becoming a lawyer, but CALS makes an effort to help students to become more aware of the feelings that go along with practicing law, and to become better able to make those feelings work for them rather than prevent them from achieving their work goals. For example, anxiety about confronting an older, more experienced opposing attorney may prevent a lawyer from discussing a case with that attorney before trial. Awareness that anxiety is a barrier can enable a new lawyer to ask for a meeting even though there is a risk of being rebuffed. Similarly, in CALS we explore the entire range of emotions that lawyers inevitably experience while working on cases, including anger, competitiveness, frustration, elation, and many others.
10. Understanding the relationship between theory, fact, and evidence.
In doctrine-oriented law school courses, it is often very difficult to understand that developing a theory of a case is only the first step. Most litigators spend relatively little time developing theory, and far more time discovering facts and then figuring out how to turn those facts into admissible evidence. One objective of CALS is to help law student representatives understand the practical relationship between these three concepts.
A special aspect of this work involves enhancing law student representatives’ appreciation of the complexity of the real world (as opposed to the relatively tidy world described in appellate opinions). Cases involve not only conflicting versions of complicated events, but often the perceptions of experts who speak in the specialized jargon of another discipline (e.g., history or psychology) which must be mastered to present a case properly. Learning to cope with complexity–including learning to translate the language of specialists to laypersons–is one of the things we hope to help you achieve at CALS.
11. Exploring professional value choices.
In the United States, lawyers have a great deal of power to affect not only individual clients, but also society as a whole. Yet many lawyers do not realize how much power they have to achieve their vision of a just society, and others have not allowed themselves the luxury of asking what kind of a society they would like to help produce.
At CALS, we consider professional value choices in several ways. First, we learn from our clients. Some asylum applicants are people who have risked their lives in an attempt to create a more just society. Second, we try to create a less hierarchical and more open learning environment than is found in most educational systems, with the idea that in such an environment, students will feel encouraged to make their own choices about the settings in which they will work, and will learn techniques for asserting authority in those work settings. Third, there are opportunities in the Clinic for explicit discussion about career choices with the instructors and fellow students. Fourth, by constantly asking students to be explicit about their goals, we hope to help them to ask themselves routinely about what they want to accomplish, rather than drift into traditional career paths for lack of seeking anything better. Finally, because CALS instructors have so much direct contact with students, they are often effective employment references, in whatever types of careers the students decide to pursue.
12. Exploring professional responsibility.
Many Clinic cases (like many cases that practitioners handle) involve challenging ethical issues. For example, when a CALS student counsels a client who is not already in removal proceedings to apply for asylum, the student begins a process that could also lead to the client’s deportation. These dilemmas (most of which are not even mentioned in the Rules of Professional Conduct) are an occasion for rich and fruitful exploration, and we take advantage of them. They make the subject of professional responsibility a lively one, because they are not hypothetical. Here, as in questions of strategy, advisors are available for consultation on any matter but will not tell the students what to do.
13. Skills training.
Another of CALS’ goals is to give students some experience, guidance, and detailed personal feedback as they execute such standard legal activities as interviewing, case planning, investigating facts, counseling, legal writing, witness examination, and oral argument. Students not only undertake these activities in their cases, but we also have classroom exercises in which you will practice many of these skills. Development of these skills is an important part of a lawyer’s training, and CALS is structured to provide you with many opportunities for improving your facility with them. As this list of goals suggests, however, we believe that becoming an excellent lawyer involves developing a much broader range of skills than those that sometimes leap to the mind of someone trying to catalogue how litigators spend their time.
14. Enhancing creativity.
One of the hallmarks of a really effective lawyer is that he or she can (1) recognize those occasions when doing a task by the book is not so likely to achieve satisfactory results, (2) figure out a creative alternative, and (3) find the courage to deviate from the accepted norm of practice. CALS tries to encourage professional creativity, and students have often been startled by how successful they can be by allowing themselves to be imaginative. In CALS, we use many techniques to encourage creativity, including discussions of alternative ways of doing things, consideration of emotional factors that inhibit creativity, and the use of acting and role-playing. Indeed, we think that managing CALS is a way of exercising (and modeling) our own creativity within a fairly traditional bureaucratic institution (the law school).
15. Learning to exercise authority.
As we noted in the introduction to this chapter, we devolve to you a large amount of responsibility. We plan the educational structure, but we give you and your clients the power to make and execute many decisions in your cases. You, not we, will counsel your clients, prepare your witnesses, and deal with immigration officials, and you, not we, will conduct hearings. In addition, you will be able to decide how to work within your partnership, and to a considerable degree, you will be in charge of your meetings with us; you will decide what subjects you want to discuss with us in our weekly meetings, and what kind of feedback you want from us at various stages of your cases. Clinical education is very different from courses in which you try to absorb information just by reading or by listening in class, or even from research seminars where you have more choices but your decisions lack consequences for other people. CALS offers the opportunity to be very reflective, but once you have reflected, CALS is a setting in which you can and often must take action.
16. Learning to meet deadlines.
One of the challenges of lawyering is learning to meet court deadlines. The most important deadline you will face is the deadline for submitting your client’s revised affidavit and supporting documents to the court. Generally, Immigration Courts require that document submissions be filed – and a copy sent to opposing counsel – fifteen calendar days prior to the individual merits hearing. If you miss the court imposed deadline – whether it is fifteen days prior to the hearing or a different date set by the court – your documents may not be accepted into evidence or considered by the court. There are exceptions to this rule in cases where the evidence becomes available after the court deadline has passed.
Beginning lawyers often underestimate the amount of time it takes to compile and complete the court submission because they cannot possibly know how long it takes to get everything into shape before they have been through the entire hearing process at least once. This challenge is increased by the fact that advisors need to review your entire court submission before you send it to court. So remember to focus on this deadline and schedule accordingly. (See the chapter on Court Deadlines in your Practice Manual for more information.)
17. Learning how to learn.
Can you fully achieve all these goals in fourteen weeks? Of course not! All we can do is to give you a start, along with some experience in examining your own learning processes. If you can learn more about how you learn best, you can continue to apply the CALS techniques that work for you in the years to come. If you discover that you learn well by brainstorming with a partner, or arguing with an authority figure, or role-playing an upcoming event on a recording, you will have an asset that can be used over and over again, long after you leave our institution. You can’t stay in CALS very long, but we do hope that out of a short but intense association with us you will take with you some approaches and techniques, and that as you work at your craft twenty years from now, you will still be drawing on what you learned at CALS about how you grow.
National practice standards now establish a 15-day rule for filings in non-detained cases, but allow individual judges to set different deadlines. In detained cases, filing deadlines are as specified by the Immigration Court, oftentimes 10 days in advance of the merits hearing. Some judges have strongly suggested, and at times required, in the case of large document submissions, that representatives file the packet, or parts of it, with the court well in advance of the usual deadline.