1343

THE TROUBLE WITH LAW SCHOOL

EDUCATION: A CONSULTATION AS A
MICROCOSM

Louis M. BROWNt

In law schools across the country (also in Canada and England),

students are invited to participate in a competition in which they as
"lawyers" counsel a "client." This Client Counseling Competition,
now in its sixteenth year, is administered by American Bar Associa-
tion through its Law Student Division.' About two-thirds of the ap-
2
proved law schools participate in this now international competition.
The gist of the competition is that students 3 successively counsel
the same client. The students are given advance information, usually
in the form of a memorandum from a secretary. The appointment
memorandum 4 in the finals of a recent intra-school competition 5
stated:

t Of Counsel, Sanders, Barnet, Goldsmith & Jacobson. Professor of Law, Emer-

itus, University of Southern California Law Center. Distinguished Visiting Professor,
Whittier College School of Law (Los Angeles). Professor Brown is the founder of the
Client Counseling Competition.
1. Information concerning the competition may be obtained by writing to Ameri-
can Bar Association, Law Student Division, 750 N. Lake Shore Drive, Chicago, IL
60611.
The competition, which was first called Mock Law Office Competition, started in
1969 and involved only two law schools. Brown & Bonnano, InterscholasticMock Law
Offie Competition-A Descriptionand an Invitation, 15 STUDENT LAW., Feb. 1970, at
24. It was an outgrowth of the development of preventive law as a separate subject of
study and teaching. Brown, From Preventive Law to Mock Law Office Competition,51
OR. L. REV. 343 (1972).
2. Since 1973, the Competition has been administered under the auspices of
American Bar Association. All American Bar Association approved law schools are in-
vited to participate. Recognized Canadian Law Schools began participation in 1981. A
competition was conducted among law schools in England for the first time in 1984.
3. The consultation rules provide that two students acting as partners, or associ-
ates, in a law firm counsel the client. This rule has two main purposes: (a) students
will assist each other in preparation for the consultation; and (b) to offer opportunity
to experience cooperate lawyering because law school education offers scant opportu-
nity for the kinds of cooperative experience that lawyering often requires.
4. The Client Counseling Committee is charged with the responsibility of pre-
paring the material for the competitions as they proceed from intra-school, to the
twelve regional competitions, and then to the national finals. A theme is set each year.
The materials consist of an appointment memorandum and a confidential profile
describing the role-playing client. The distribution of these materials is handled by
American Bar Association's Law Student Division and the law schools.
5. The intra-school competition that I observed took place at a law school in
California.
1344 CREIGHTON LAW REVIEW [Vol. 18

Client Counseling Competition

Landlord-Tenant Problems
1984 Intraschool Competition

CONSULTATION SITUATION FOR LAWYERS:

MEMORANDUM TO FILE
TO: Lawyers Date: _ , 1984
FROM: Secretary RE: Ms. Arlene Lempert
Ms. Lempert operates a boutique and gift store here in town and
says that she is having trouble with her landlord, who gave her notice
that he is evicting her. She wants advice as to her legal rights. I set
up an appointment with you and told her to bring the lease with her.
A person, often someone who has had some training in acting or
who has had life experiences somewhat similar to the profile of the
client, was selected several days in advance to play the client role by
the faculty member in charge. She was given a sealed envelope con-
taining her profile. A copy of that confidential profile is reproduced
in the Appendix. The profile gave a rather good picture of the cli-
ent-facts which were legally significant, facts which might not be le-
gally relevant, and other elements that go to make up a complete
person. The confidential profile not only served to assist the person
in being a client; it also served to make uniform the basic client facts
through a series of successive consultations.
In the three consultations, the students, as lawyers, ascertained
the basic facts of legal significance. The client became a tenant in
1980 under a two-year lease, a copy of which she could not find. She
continued to pay rent monthly. The landlord had given her written
notice of eviction by leaving it at the store on February first. She
brought a copy of that notice which was shown to the lawyers.
Inquiring about her rights during the consultation, the client said
that she wanted to remain in the premises. In the three successive
consultations, each with different student lawyers, the students did
reasonably well in explaining a landlord's right to terminate a month
to month tenancy, urged the client to look further for the lease, won-
dered whether there might be some defect in the notice terminating
the tenancy or the way in which it was served,6 and tried to explore a

6. Such a notice must be written, CAL. CIV. CODE § 1946 (West 1954 & Supp.
1984), and given in the prescribed manner, CAL. Civ. PROC. CODE § 1162 (West 1982).
The service is preferably by personal delivery, but other methods may be used. The
statute provides that certified or registered mail will suffice when the tenant is absent
from the usual place of business. CAL. CIV. PROC. CODE § 1162 (West 1982). The "cli-
ent" stated that the notice was left under the front door of the store. It is probable
that such a notice was defectively served. The students did not clearly identify this
1985] LAW SCHOOL EDUCATION 1345

bit about the reasons or motives for the termination (the client did
not know) and other relevant aspects of a defense to the landlord's
possible action for unlawful detainer or eviction. So far so good. The
mind-set of the lawyer-the litigation process and what could happen
in a courtroom if the landlord sues-was the dominant focus of
attention.
What's the trouble? The trouble is that the mind-set of the stu-
dents is on litigation and litigation only. There was not in their
thinking process negotiation, settlement, compromise, collaboration,
or deal-making.
This competition was judged by three persons, two lawyers and a
psychologist.7 The two lawyers tended to agree with the low
probability of developing any sort of a viable defense. But each of
these consultations lacked any search for some benefit to the client
by methods outside the strictly legal procedures. The client volun-
teered that she would find it difficult to vacate the premises in six
weeks, that is, from the date of the consultation in February to the
date specified in the notice, March 31st. This information alone
ought to have been sufficient to lead students into thinking in terms
of trying to negotiate for some extension of the termination time.
She pointed out that the monthly rent was favorable and that she
would find it difficult to pay a higher rent or to obtain comparable
space for the same rental. The students accepted the client's state-
ment of financial inability to pay a higher rental. Lawyers often ac-
cept such a statement by a client; but sometimes that sort of assertion
deserves testing or reviewing, especially when some higher rent may
be less costly than the defense of a virtually defenseless lawsuit. Of
course a client, almost every business client, might suggest such pos-
sibility, but the script did not include that solution.
In only one of the consultations was communication with the

defect, although each team scheduled this item for additional research. If the students
had latched on to this item in the consultation, one can wonder how they would have
counseled the client. A lawyer can speculate whether it is wise to hold back on the
method of service, await the development of a lawsuit, and assert the defense. Or, at
other times, a lawyer might bring up the defect earlier in the hope of obtaining some
bargained advantage for the client. Consider the cost to the client of legal process.
What other choices might be available? To what extent should decision as to course of
action be the client's decision or a collaborative decision of lawyer and client. Each of
the consultations proceeded as though the service of the notice was adequate.
7. There customarily are three judges; two lawyers familiar with the general
subject matter and one person from one of the other counseling professions, for exam-
ple, a psychiatrist, psychologist, minister, or social worker. Having a counseling or be-
havioral professional as one of the judges helps to point up the evident circumstance
that client counseling includes human as well as technical legal aspects. Several texts
on legal counseling have been published since this competition began. Each text points
out that the lawyer's role includes recognition of the personal human side of the coun-
seling activity.
1346 CREIGHTON LAW REVIEW [Vol. 18

landlord brought forward. The confidential profile offered the client

an explanation for her reluctance to contact the landlord. She had
been in a clandestine relationship with the landlord until her mar-
riage to her present husband some months ago. Nevertheless, in that
consultation the student lawyers suggested that she communicate
with the landlord, but they offered her no help concerning the man-
ner or content of that communication. Nor did they suggest the pos-
sibility that they, as her lawyers, contact the landlord. If the
consultation had reached this point, the sensitive aspect of her clan-
destine relationship might have been discussed. She would probably
be reluctant to have her lawyer, as her representative, bring up the
subject to the landlord. The lawyer could abide by her wishes. This
situation would be a grand opportunity to underscore the confidential
attorney/client relationship. The direction of communication with
the landlord could be to determine whether a higher monthly rent
would do the trick and, if so, how much? Or, perhaps, negotiation
could explore an extension of the termination date in order to give
the tenant more time to seek other premises. She had been a good
tenant for four years. She even had improved the condition of the
premises during that time. The lawyers, on her behalf, might be in a
better posture than the client to negotiate with the landlord.
Legal education did something to these students. It forced them
to confine the direction of their thinking to the precise facts as given.
No changes. No modifications of facts. No development of facts in
the future. No new, even future, facts can come into the picture.
The law professor teaching an appellate case insists that the student
understand and accept the facts in that case. The court must judi-
cially decide that case, and no other.
The lawyer/client consultation requires a far broader scope of
thinking than does solution of a controversy presented to a court.
The consultation requires knowledge of the law, but it also requires
that methods not available in the dispute process be considered. This
consultation, like many that occur in lawyers' offices, requires also
that consideration be given to the creation of new facts and to the de-
velopment of alternative solutions. It never occurred to the students
to consider negotiation to extend the time, nor was there any decent
exploration of the landlord's motives. It never dawned on the stu-
dents to find out whether money could be used as a means to accom-
plish client goals.
There are more subtle points about potential litigation built in
this consultation. The client is paying rent monthly. The next pay-
ment will be due April 1st. Can the lawyer help the client build any
sort of a record so that some helpful language could be written on
1985] LAW SCHOOL EDUCATION 1347

the April 1st check which, if cashed, would be binding on the land-
lord? Post consultation with the students revealed that such a
thought never came close to their minds. Why not?
The trouble is not with the students. The trouble is with the ed-
ucational process, its materials, and the environment where the law
school law is pronounced. Law school "law" is the law pronounced in
the courtroom by an appellate court. The frequently expressed state-
ment that law school education is designed to teach students to
"think like a lawyer" is misleading. The expression should more
nearly be "think like an appellate court judge." Thinking like a law-
yer goes far beyond the commonly understood meaning of legal
reasoning.8
In the law office the lawyer not only pronounces law. The law-
yer also is concerned with guiding, or assisting, the client in a course
of action. There is more to law office lawyering than law. In getting
the facts from the client, the lawyer must sort out the facts that are
legally significant from those that are not; the lawyer must be con-
cerned with extra-legal facts and extra-legal solutions to the needs
and objectives of the client. The lawyer may assist the client in de-
veloping future facts, and the lawyer should take into account the
personality and circumstances of the client.
Law office "law" is thus appellate court law plus. In the dispute
realm, law office lawyering includes building a record of past events
(the cancelled checks, for example) so that if a dispute does reach the
stage of serious conflict (lawsuit or arbitration), the client's case is
strengthened. Consideration should also be given to developing any
future facts (a new writing) that may help achieve client goals. In
addition, the lawyering process includes an understanding of the
means of accomplishing client goals by available methods which the
appellate law process does not address.9 The client needs and can use
help. We are not foreclosed from suggesting discussion with a real

8. The point is not new, although the law school climate is not yet sufficiently
attuned to the breadth of thinking and human interaction that takes into account the
personal sense of justice and needs of clients. T. SHAFFER & R. REDMOUNT, LAWYERS,
LAw STUDENTS, AND PEOPLE (1977).
9. This role of the lawyer, often creative, is scarcely illustrated in typical law
school exercises. Law school education does address the creative role of the lawyer in
developing legal argument and legal theory in the appellate arena. This consultation,
and the lawyer/client relationship in planning (preventive law), however, requires cre-
ativity in the development of new and future facts. Thinking like a lawyer in the
realm of future facts, and using ideas, methods, devices, and programs in preventive
law lawyering offers opportunities for law school curricula that are relatively new. L.
BROWN & E. DAUER, A Synopsis of the Theory and Practiceof Preventive Law, in THE
LAWYER'S HANDBOOK ch. 3 (A.B.A. rev. ed. 1982) and L. BROWN & E. DAUER, PLAN-
NING BY LAWYERS: MATERIALS ON A NONADVERSARIAL LEGAL PROCESS 263-301 (1978)
(Chapter Six, "Thinking About Planning").
1348 CREIGHTON LAW REVIEW [Vol. 18

estate agent who might assist in negotiating with the landlord or in

locating new premises. Nor are we foreclosed from re-considering
with the client her statement that she cannot afford a higher rental.
That law students will eventually learn such nonlegal alterna-
tives after they get out of law school and into practice is the weakest
excuse for the failure of law school education to do so. Many things
can be learned by self-education. Those who know how to reflect on
experience can learn a great deal from it. But learning through such
self-education is not necessarily an efficient method of learning. Nor
does the existence of such learning justify ignoring this aspect of
lawyering during law school.
Thirty minutes-the consultation time allowed in this competi-
tion-is perhaps too short a time for this consultation, although one
consultation finished sooner. But in thirty minutes, followed by the
fifteen minute "wrap-up,"' 0 the judges can get a good picture of the
direction the students are taking, their grasp of client needs, and
their predilections. One of the observers remarked that the students
might have done better along the lines of finding solutions if they
conversed with the client in the living room at home. By going to
law school they may have forgotten how to be human; they may have
forgotten how to employ that complex process called common sense.
Consider this consultation situation as a problem in law school or
on a bar examination." An essay could be written that would state
the content of the consultation. It would include but go far beyond
the customary question-the legal rights of the parties or the defense
to a lawsuit. A consultation calls for a course of future action. It
calls for some judgment. It seeks some discussion of the costs of liti-
gation and the relation of those costs to non-litigation solutions. A
lawyer who seeks a non-litigation solution serves the ends of society
and frequently helps the other party. We not only seek to help a cli-
ent; we ought to do so in such a way as to serve public goals. A rep-

10. The rules provide for forty-five minutes per team. Customarily, the consulta-
tion with the client is thirty minutes. The client leaves the "office." The lawyers then
openly discuss the consultation, reflect on it, dictate a file memo, explain their han-
dling of the consultation, etc. After this forty-five minute session, the judges engage
the students in a critique period. The critique period often occurs after the judges
have decided the "winner."
11. I used the Lempert consultation as a take-home exam problem in a course I
taught, Spring 1984, at Whittier College School of Law (Los Angeles). It worked well.
Each student was required to write an essay on "Your Role as a Lawyer." The better
papers included discussion of all the points mentioned in this article plus such items
as: "Can Ms. Lmpert afford to buy the building?" "Does she have another building
to lease?" "What is the financial picture of the business?" In addition, some preven-
tive law aspects flow collaterally from the facts: "Should she consider doing business
as a corporation?" "Should her recent marriage alert her to consider a marital con-
tract, especially with regard to her separate property ownership of the business?"
1985] LAW SCHOOL EDUCATION 1349

resentative of the client need not be an enemy of the other party to a

dispute or to a proposed transaction.
12
Chief Justice Burger is largely correct when he stated:
The entire legal profession-lawyers, judges, law teachers-
has become so mesmerized with the stimulation of the court-
room contest that we tend to forget that we ought to be heal-
ers of conflicts. Doctors, in spite of astronomical medical
costs, still retain a high degree of public confidence because
they are perceived as healers. Should lawyers not be heal-
ers? Healers, not warriors? Healers, not procurers? Heal-
ers, not hired guns?

12. Address by Chief Justice Burger, American Bar Association Mid-Year Meet-
ing (Feb. 12, 1984), reprinted in 70 A.B.A.J., Apr. 1984, at 62-66.
1350 CREIGHTON LAW REVIEW [Vol. 18

APPENDIX

PROFILE OF: MS. ARLENE LEMPERT

You are Arlene Lempert, age 28, and you operate an unincorpo-
rated business called Arlene's Gifts and Notions. It is a retail store
which sells gifts, stationery, and some clothing. The business is situ-
ated at 718 Store Street in this city, in a one-story building owned by
a Mr. Fred Renwick. You started the business at that location in
January of 1980, just over four years ago.
You had a written lease with Mr. Renwick during your first two
years of operation, but no longer have a written lease. The written
lease of the building was for a two year term, beginning January 1,
1980 and ending December 31, 1981. It stipulated a rental of $300.00
per month. As you recall, it had no terms or stipulations covering
the costs or reimbursements for improvements to the property. Since
the end of 1981 there has been no written lease. You have simply
continued paying the monthly rental since then. On several occa-
sions over the past two years, Mr. Renwick has orally assured you
that you were a good tenant and could remain in the building for as
long as you liked. In preparation for today's meeting you looked all
over for the original lease but were unable to find it. You think it
probably was thrown out accidentally sometime over the last two
years.
Two weeks ago you received a letter from Mr. Renwick inform-
ing you that, effective at the end of next month, he would be unable
to rent you the building in which you operate your business. He gave
no reason or explanation.
You are quite upset about his cancelling the lease. You recently
married and your husband is in his second year of dental school. You
two had planned that your business income would be your chief
means of income and support until he graduates. The existing ac-
commodations are perfect for your business, and you're not at all
sure that you could find another suitable building at a comparable
price within the next month. Another problem is that over the past
four years you've made substantial improvements to the property at
your own expense. You've had the entire interior wall-to-wall
carpeted, replaced three old ceiling light fixtures with attractive ceil-
ing-fan and light fixtures, and recently had the entire interior re-
painted. If Renwick can force cancellation of the lease, you are
interested in recovering these costs.
You have had a sexual relationship with Fred Renwick for sev-
eral years. This relationship began sometime in 1981, and began to
end about seven or eight months ago when you began to date your
husband. In December of 1981, when the original written lease was
1985] LAW SCHOOL EDUCATION 1351

almost at an end, you brought up the need for a new written lease
with Fred. But he assured you at that time, and several times since,
that there was no need for a written lease and that you and your
business could remain in the building "forever." You are certain that
he is evicting you out of anger and just to spite you because you have
terminated the personal relationship. Fred Renwick is married and
has been for about ten years. He has two children. You know that
his wife knows nothing about Fred's relationship with you, for you
were both most discreet about your affair. It occurs to you that per-
haps this gives you a bit of "leverage" which might be used to con-
vince Renwick to change his decision and allow you to remain in the
building. Needless to say, however, you are not anxious that your
husband should learn of your personal relationship with Renwick.