Teaching First-Year Civil Procedure and Other Introductory Course

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Teaching First-year Civil Procedure and Other

Introductory Courses by the Problem Method
Stephen J. Shapiro
University of Baltimore School of Law, [email protected]
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Recommended Citation
Teaching First-year Civil Procedure and Other Introductory Courses by the Problem Method, 34 Creighton L. Rev. 245 (2001)
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245
TEACHING FIRST-YEAR CIVIL
PROCEDURE AND OTHER
INTRODUCTORY COURSES BY THE
PROBLEM METHOD
STl~PIl[EN J. SHAPIRot
I. INTRODUCTION
I have been teaching the first-year course in Civil Procedure for
twenty years, first for five years at Ohio Northern University, and for
the last fifteen years at the University of Baltimore, where I also teach
a required second-year course in Evidence. When I first started teach
ing Civil Procedure, I used a fairly typical case method. 1 I was never
very happy with this approach for teaching a course in which one of
my major goals was getting the students to learn to read, interpret
and apply the Federal Rules of Civil Procedure ("Federal Rules").
Gradually, I began to develop sets of my own problems which I used to
teach some of the classes. Eventually, I developed enough problems,
so that I could teach the entire first semester of the two-semester
course by the problem method. 2 Within the last several years I have
developed enough additional problems to teach both semesters of Civil
Procedure and also the Evidence course entirely by the problem
method.
There has been an ongoing debate within legal education as to the
relative merits of various teaching methods, especially the case
method and the problem method. 3 Yet even some supporters of the
problem method believe that it is more suited to smaller, advanced
t Professor of Law, University of Baltimore School of Law. B.A. 1971, Haverford

College; J.D. 1976, University of Pennsylvania.
1. For a description of the typical form of case method which I used when I first
started teaching, see infra notes 7-8 and accompanying text.
2. For a general description of the problem method, see infra notes 14-15 and ac
companying text. For a detailed description of exactly how I use the problem method,
see infra notes 34-58 and accompanying text.
3. "What is the best instructional system for teaching American decisional and
statutory law? For over one century legal scholars, jurists, practitioners, and law stu
dents in the U.S. have debated the question in public and private forums." PauJ- F.
Teich, Research on American Law Teaching: Is There a Case Against the Case System?,
36 J. Legal Educ. 167 (1986). Teich recognizes that although the main debate has been
about the relative merits of the case method and the problem method, there are other
methods employed by law teachers and described in the literature, including: the adver
sary method, lecture-textbook method, discussion-textbook method, audio-visual meth
ods, programmed learning, computer-aided instruction, role playing in simulated case
negotiations, use of simulated trials, and the use of students as teachers. Id. at 171-72.
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2000] PROBLEM METHOD 247
dissect, defend and/or criticize the court's opinion. When the discus
sion of the first case is finished, the professor moves on to the second
case, usually involving the same or related subject matter, sometimes
by the same court and sometimes not. The professor then proceeds to
have the class discuss the second case, much like the first, sometimes
with the additional task of trying to rationalize any difference of re
sults between the two cases.
The benefits of this approach are said to be that it teaches stu
dents to read and think carefully, logically and critically-Le., to
"think like a lawyer." It requires students to learn actively (compared
to the textbookllecture format which preceded it). In class, this means
the students learn to think on their feet, and make and defend an ar
gument. The case method also supposedly teaches students to learn to
recognize the important facts and issues in a case and to separate
these issues from red herrings and makeweight arguments. It also
requires students to individually glean the substantive law in a partic
ular field from the cases, rather than spoon feeding the law to stu
dents through lecture or text. It also requires the students to
recognize that the law is a growing, changing body of doctrine. s
The case method, and the extent to which law faculty have come
to rely on it, has also been subject to criticism. Critics, while admit
ting that the case method might do a good job of teaching students to
understand and work with appellate opinions,1O have noted that this
skill forms only a small part of what lawyers actually do. Most law
yers do not get involved with a case at the appellate level, but rather
most become involved at the beginning of the case. The client brings a
problem to the lawyer, and the lawyer's job is to determine the rele
vant facts, and find and apply the appropriate law in order to either
advise the client or help solve the client's problem. l l
Students who have been taught by the case method usually get
some exposure to problem solving, but often not until they take their
9. See generally James M. Dente, A Century of Case Method: An Apologia, 50

WASH. L. REV. 93 (1974); Hawkins-Leon, 1998 BYU EDUC. & L.J. 1; William C. Heffer
nan, Not Socrates, But Protagoras: The Sophistic Basis ofLegal Education, 29 BUFF. L.
REv. 399 (1980); Thomas F. Konop, The Case System-A Defense, 6 NOTRE DAME L. REV.
275 (1931); Pierre R. Loiseaux, The Newcomer and the Case Method, 7 J. LEGAL EDUC.
244 (1954); Morgan, 4 J. LEGAL EDUC. 379; Teich, 36 J. LEGAL EDUC. 167; John W.
Wade, Some Observations on the Present State of Law Teaching and the Student Re
sponse, 35 MERCER L. REV. 753 (1984); Weaver, 36 VILL. L. REV. 517.
10. "When these students become lawyers and have occasion to explain and criti
cize a reported opinion for a senior partner, a judge, or occasionally a client, we can
expect them to do a terrific job." Moskovitz, 42 J. LEGAL EDUC. at 245.
11. "If our job is to train students to 'think like lawyers,' then we should train them
to solve such a problem, because that is the kind of thinking that lawyers must actually
do.... Problem-solving is the single intellectual skill on which all law practice is based."
Moskovitz,42 J. LEGAL EDUC. at 245.
248 CREIGHTON LAW REVIEW [Vol. 34
exams at the end of the semester. These exams typically involve a set
of hypothetical facts constituting a legal problem, and one or more
questions testing the student's ability to recognize the legal issues in
volved in the problem and requiring the students to discuss how the
law (or a lawyer or judge) would handle these issues. The divergence
between how students are taught and tested has lead to further criti
cism that the case method is not only ignoring the skills that lawyers
need in practice, but also the skills that students need to succeed in
law school. 12 The case method has also been criticized because it puts
too much emphasis on cases as the source of substantive law, when
more and more law is governed by statutes, rules and regulations. 13
One proposed solution has been to turn, in whole or in part, to the
problem method. 14 In the problem method, the students are given a
set of facts, similar to a real life legal dispute (or a law school exam).
Although students might still read (among other sources) some appel
late cases to learn the law to be applied, the problems, rather than the
cases, become the focus of the class discussion. 15
12. Myron Moskovitz explains this quite vividly:

Your teenage son has just up for a tennis class at high school. "The class
seems kind of weird," he says. "The teacher told us that we will spend every
class watching videotapes of tennis players playing matches, and he will lead
us in a discussion ofwhat they are doing right and wrong, and what the rules of
tennis are. But we won't actually play any tennis ourselves until the final
exam. Then our entire grade will depend on how we play during that exam.
Does that make any sense to you?" If you teach by the case method, you should
probably reply: "Of course it makes sense, my boy. That's just how we do it in
law school!"
Moskovitz,42 J. LEGAL EDUC. at 249.
13. 1966 Annual Meeting, 1966 Ass'N AM. L. SCH. 198, 209 (1966).
14. Literature on the problem method includes: 1966 Annual Meeting, 1966 A<:s'N
AM. L. SCH. 198, 209 (1966); Handbook, 1948 Ass'N AM. L. SCH. 203 (1948); Handbook,
1942 Ass'!\' AM. L. SCH. 86 (1942). Articles discussing the problem method include: W.
H. Bryson, The Problem Method Adapted to Case Books, 26 J. LEGAL EDUC. 594 (1974);
David F. Cavers, In Advocacy of the Problem Method, 43 COLUMB. L. REv. 449 (1943); W.
H. Charles, What is the Problem Method?, 40 CAN. B. REV. 200 (1962); H. F. M.
Crombag, J. L. De Wijkerslooth & E. H. van Tuyl van Serooskerken, On Solving Legal
Problems, 27 J. LEGAL EDUC. 168 (1975); Hawkins-Leon, 1998 BYU EDUC. & L.J. 1;
Gordon A. MacLeod, Creative Problem Solving for Lawyers, 16 J. LEGAL EDUC. 198
(1963); Richard S. Miller, A Report of Modest Success with a Variation of the Problem
Method, 23 J. LEGAL EDUC. 344 (1970); Ogden, 34 J. LEGAL EDUC. 604; Charles W.
Tainter, Required Summer Term and "Problem" Course, 2 J. LEGAL EDUC. 347 (1950);
Marlin Voliz, The Legal Problems Courses at the University of Kansas City, 7 J. LEGAL
EDUC. 91 (1954); Bernard J. Ward, The Problem Method at Notre Dame, 11 J. LEGAL
EDUC. 100 (1958); Weihofen, 43 COLUMB. L. REV. 423; John W. Whelan, Experiments
with Problems, 9 J. LEGAL Enuc. 245 (1956); Leo H. Whinery, The Problem Methods in
Education, 58 W. VA. L. REV. 144 (1956).
15. As there is with the case method, there are many variations on the problem
method, making it difficult to come up with one definition. In trying to define the prob
lem method, the 1966 Association of American Law Schools ("AALS") study adopted
what it called a broad or "inclusive" definition.
The problem method is more often used in advanced, upper-level

classes, than in first-year courses. 16 By the second and third year of
law school, students have already developed a facility with legal anal
ysis and at least a basic knowledge of the subject matter. The stu
dents can then take their basic knowledge and understanding, and
learn the skill of applying these in a more realistic and complex fac
tual situation. 17 At this point many students have become dis
enchanted or bored with the case method and appreciate the novelty of
a new approach, especially one that more closely approximates what
the students will soon be doing as lawyers. 1s
There are probably a number of reasons why the problem method
has been used less frequently to teach first-year courses. For one
thing, many faculty have found that this method works better with
the smaller class size that is more typical in upper-level classes.19
The basic characteristic of the problem method ... lies in the task it poses for
the student. The committee sees the method as requiring the student, in pre
paring for class, to focus his study on a problem or problems posed in advance of
the class. His task is to wrestle with each problem, drawing on whatever mate
rial may have been assigned to be studied in connection with it.... It also calls
for the direction of class discussion to some or all of the assigned problems and
to the student's solutions to these.
1966 Annual Meeting, 1966 AsS'N AM. L. SCH. at 202-04. To the committee and to some
writers, other variations, such as the complexity of the problems, whether a written
answer must be prepared, and the type ofin-class discussion are secondary to the main
requirements that there be (1) a fact-based problem, (2) assigned to be prepared out of
class, and (3) it be a main focus of class discussion. Ogden, 34 J. LEGAL EDUC. at 655.
Some writers exclude problems based on simple, skeletal facts from their definition and
require "several issues cutting across several cases and statutes. It is meant to resem
ble a complex situation that a lawyer might face in practice." Moskovitz, 42 J. LEGAL
EDUC. at 250. See also, Hawkins-Leon, 1998 BYU Enuc. & L. J. at 8-9.
16. A 1966 survey by the AALS found relatively little use of the problem method in
the first year and the greatest use in third and fourth year courses, with second-year
courses falling in the middle. Its use in second-year courses was more likely to be on a
limited scale, for special purposes, rather than for a majority of class time. 1966 Annual
Meeting, 1966 AsS'N AM. L. SCH. at 221. More recently, some writers have advocated
extending the problem method into first-year courses. See Charles Calleros, Variations
on the Problem Method in First-Year and Upper-Division Classes, 20 U. SAN FRAN. L.
REV. 455 (1986); Moskovitz, 42 J. LEGAL EDUC. at 261-63.
17. Ogden states that "mastery of case analysis is a prerequisite to use of problems
which require case materials to find solutions." Ogden, 34 J. LEGAL Enuc. at 655; see
also Moskovitz, 42 J. LEGAL EDUC. at 262, quoting from a letter from Professor Nathan
Crystal, "lawyers face problems with a conceptual and linguistic framework developed
from law school and practical experience. First year students don't have this frame
work. Thus, I think it is sounder pedagogically to develop the framework first and then
proceed to the problems." ld. at 262.
18. 1966 Annual Meeting, AsS'N AM. L. SCH. at 210-11; Ogden, 34 J. LEGAL EDUC.
at 664.
19. The intensity ofthe problem method and the development of skills that can
result from its use require small classes for the sake of both teacher and stu
dent .... When the problem method is used in courses that are much larger
than 40 students, the experience of developing problem-solving skills is a vica
rious one for most students. It is also less workable to require all students to
There has also been a wider choice of published materials using the
problem approach for advanced courses. 20 Another contributing fac
tor is that first year students do not have the basic knowledge of sev
eral areas of the law, which is very helpful in working out complex
problems that cut across several areas and issues. There may also be
a feeling (not necessarily correct) among those accustomed to teaching
by the case method, that the problem method is less efficient than the
case method for teaching legal doctrine. 21 Many teachers of first-year
subjects feel a tension between trying to acquaint the students with a
vast body of substantive law and teaching the students skills, such as
legal reasoning and problem solving. These faculty members are less
likely to use the problem method if they view it as more time
consuming.
Many law professors who use the case method also employ a tech
nique somewhat akin to the problem method: the in-class hypotheti
cal. The in-class hypothetical is usually a very short, simplified
problem, presented to the students in class by the professor. It is usu
ally devised by the professor, either in advance or on the spur of the
moment, but presented to the students in class rather than before
class. The in-class hypothetical is generally designed either to illus
trate a specific point raised during the class or to show how the results
might differ if the facts of the particular case under discussion were
slightly different.
The in-class hypothetical does give the students at least some of
the benefits of the problem method. Students are required to take the
legal doctrine learned from the case law and apply it to a different set
of facts. There are, however, some limitations. In-class hypotheticals,
both by necessity and design, are usually based on very simplified
facts and focused on one narrow issue. 22 The hypotheticals do not,
therefore, provide the students practice with analyzing the more com
turn in written answers to the problems if the teacher has to read 50 to 150
answers for each problem session.
Ogden, 34 J. LEGAL Enuc. at 664-65: See also 1966 Annual Meeting, 1966 AsS'N AM. L.
SCH. at 213-14.
20. A 1984 survey of West and Foundation Press publications found thirty-four
sets of problem materials for fifteen courses normally considered part of the upper-level
curriculum and only seven for five first-year courses (one each in criminal law, property,
and torts, and two each in civil procedure and contracts. Ogden, 34 J. LEGAL EDuc. at
670-73.
21. The 1966 AALS study found that although course coverage was viewed as a
concern by many of those who did not use the problem method and by some who did, a
majority of the faculty who actually used the method found it superior in this regard.
1966 Annual Meeting, 1966 AsS'N AM. L. SCH. at 211-12.
22. "[AJ hypo is not a problem. A hypo usually raises only one or two issues. A
problem raises several issues, which must be organized before each can be separately
analyzed." Moskovitz, 42 J. LEGAL Enuc. at 246.
plicated factual situations they are likely to encounter in law practice,

or even the slightly more complicated facts of a law school exam. Even
when so simplified, however, hypotheticals do not always produce
good student response, since the students have not had an opportunity
to prepare for the hypothetical.23
B. My EXPERIENCE WITH THE CASE METHOD
When I first started teaching Civil Procedure, I used the case

method, with a liberal sprinkling of in-class hypotheticals. I was not
satisfied with this approach, for reasons in part the same and in part
different than those for which the case method has usually been criti
cized. I felt this dissatisfaction more acutely during the first semester,
in which I taught the conduct of a lawsuit from complaint to appeal
{and for which the primary source of law was the Federal Rules),24
than in the second semester when I taught such topics as jurisdiction,
the Erie doctrine and res judicata (for which the primary source of law
was appellate cases).25
The reasons I found the case method unsatisfactory were in part
related to what I was trying to accomplish in the first semester. First,
I wanted to give the students a sense of the adversarial system of civil
justice in the United States and the flow of civil litigation, including
the tactical and ethical decisions faced by litigators. But I also wanted
students to become adept at reading, understanding and applying the
Federal Rules. In particular, I wanted students to be able to recognize
issues that might arise in the interpretation and application of the
Federal Rules in specific factual situations. I saw this aspect of the
course as an exercise in learning the skill of statutory construction. 26
23. A 1942 AALS committee stated that "the practice obtained by the students
with "hypos" is necessarily grounded in shallow consideration for want of opportunity to
wrestle with the problem before class ...." Handbook, 1942 AsS'N A'I1. L. SOH. at 88.
24. Most Civil Procedure texts use the Federal Rules of Civil Procedure as the
erning law for the purposes of study. Not only are these rules applicable in all
District Courts no matter where the students might end up practicing, but most states
have now adopted rules of civil procedure very similar to the Federal Rules. If state
procedure varies from federal practice, the former is often taught in a separate
upper-level course.
25. Most Civil Procedure texts and the standard Civil Procedure curriculum cover
the following topics: Conduct oflitigation (pleadings, discovery, resolution without trial,
trial, post trial motions and appeals); Jurisdiction (both subject matter and personal);
Choice of Law in Federal Courts (known as the Erie problem) and issues of Former
Adjudication (often called res judicata). This is a pretty ambitious undertaking, partic
ularly for those teaching a one-semester course, and not all faculty teach all subject
areas fully. I have always had the luxury of teaching a two-semester course and have
been able to cover all of these topics pretty thoroughly.
26. For many first-year students, Civil Procedure is the only course that provides
significant exposure to statutory or rule-based law. Torts, criminal law and property
Whatever benefits flowed from the case method when studying

common law subjects such as torts (where the cases themselves pro
vided the substantive law), are greatly diminished for an area of the
law now controlled primarily by rules. 27 While there are certainly
many cases interpreting the Federal Rules, it makes much more sense
for the students to be working directly with the primary source mate
rial itself, rather than a judge's interpretation of the Federal Rules.
One of the most important, and one of the hardest things for first
year law students to understand, is that their primary task is not to
learn and memorize the substantive rules of law. Rather, most first
year professors try (sometimes in vain) to show that the process of
arriving at the answer (or arriving at the conclusion that there may
not be one correct answer) is what students should be learning. Al
though the case method is supposed to be well suited for this, I have
not found it so. Too many students read the cases to find the "bottom
line;" that is to find, learn and memorize the "right" answer.28 Stu
dents have trouble understanding that, unless they are reading a Su
preme Court decision, the case is only one judge's opinion of what the
law is or how it applies in a specific case. 29 More importantly, stu
dents do not understand that even a Supreme Court holding may not
necessarily apply in another situation, which is not exactly on all fours
with the earlier case.
I also found that relying mainly on the case method did not pro
duce classes that were as lively and interesting as I would have liked.
Although the students were prepared, in the sense that they had read
the assigned cases, students were not really prepared to discuss the
cases in a sophisticated manner. This, I think, flowed from the pas
sive, unguided way that most law students study.30 Merely reading,
and re-reading the cases did not, in many instances, give students an
are mostly common-law courses. Contracts can be taught either as a common law
course, or with significant reliance on Article II of the Uniform Commercial Code.
27: 1966 Annual Meeting, 1966 AsS'N AM. L. SCH. at 209.
28. Students oftenview «a case as the solution to a past problem or for its contribu
tion to a body of doctrine." 1966 Annual Meeting, 1966 AsS'N AM. L. SCH. at 203.
29. Most decisions interpreting the Federal Rules of Civil Procedure do not make it
to the United States Supreme Court. In other areas of Civil Procedure, especially Juris
diction and the Erie Problem the cases in the textbooks are mainly Supreme Court
cases. In the sections involving conduct of litigation, more of the cases are lower court
opinions.
30. "[T]he Socratic Method was accepted without attention to the fact that it re
quires active learning by law students who will have practiced passive learning tech
niques for the majority oftheir educational lives." Hawkins-Leon, 1998 BYU EDUC. & L.
J. at 7. See generally, Michael Richmond, Teaching Law to Passive Learners: The Con
temporary Dilemma of Legal Education, 26 CUMB. L. REV. 943 (1995-96). While the
problem method also requires active learning, it provides the student a task to help in
preparation for class.
understanding of what the important issues were in the case. 31 Dur

ing class discussions students often became confused by complicated
facts or sidetracked by irrelevant issues.
I was also displeased with the selection of cases offered by many
Civil Procedure casebooks. Some of the casebooks include cases de
cided fairly soon after the passage of the Federal Rules, in the
nineteen thirties and forties, when many of the basic issues in inter
preting the Federal Rules were decided. 32 While these are important
historically, and helpful for showing the students the changes in pro
cedure which were introduced by the Federal Rules, I do not find the
cases very helpful in teaching students to deal with issues that occur
in litigation today. Many of the more recent cases in the casebooks
may be too difficult for many first-year law students because the cases
involve difficult, advanced issues of interpretation and application
that can only be understood after the students have learned the basic
operation of the Federal Rules. 33
C. TuRNING TO THE PROBLEM METHOD
Mter a few years, I found myself using more and more in-class
hypotheticals and putting less emphasis on the cases, at least in the
first semester. Gradually, I weeded out the hypotheticals that did not
work, or tinkered with the hypotheticals until they worked better.
Eventually, the hypotheticals evolved into sets of problems, and I had
enough problem sets that I could teach all or most of certain classes
with the problems. At that point, I began handing out sets of
problems in advance for certain classes, asking the students to pre
31. Inability to respond adequately in class, could, of course be caused by failure to

do the assigned reading. I do not think that this was the case with most of my students.
I call on students at random, so students never know when they might be called on.
This gives students the incentive to be prepared in order to avoid embarrassment. It is
my personal assessment that the students had completed the reading assignment, but
were not able to understand the cases adequately or to anticipate the question that
might arise in class.
32. RICHARD H. FIELD, BENJAMIN KAPLAN & KEVIN M. CLERMONT, MATERIALS FOR A
BASIC COURSE IN CIVIL PROCEDURE (7th ed. 1997). This is the text I have been using for
the last fifteen years, three of the first five cases in the first unit I teach on Pleadings
date before 1945. Many of these early opinions were written by federal judges who had
spent their entire careers under an antiquated system of code pleading and were strug
gling to come to terms with the application of a very different system of procedure.
33. For example, one case on summary judgment, American Airlines v. men, 186
F.2d 529 (D.C. Cir. 1949), involves the rather unusual situation where plaintiff, rather
than defendant, is granted summary judgment on liability. FIELD, KAPLAN & CLERMONT
at 100. It also contains a two-page discussion of an issue under the Warsaw Convention
(whether "willful misconduct" is the proper translation of the French word "dol"). This
is an extraordinarily difficult case for students in their third week of law school who
have not yet learned the important basic concept of what constitutes a "genuine issue"
of "material fact," and how this applies in the more typical case in which the defendant
is seeking a summary judgment. FED. R. CIV. P. 56(c).
pare answers to the problems before arriving to class. I found that the
classes in which I used the problems seemed to be more interesting
and lively than the ones using the case method. Additionally, these
classes provided more and better student responses. I therefore began
a several year process of developing enough problem sets to teach al
most the entire first semester by this method. I have been using this
method ever since, and have expanded it to include second semester
Civil Procedure and my Evidence course. In the next section of this
article, I will describe, in more detail, the kind of problems I write and
how I use the problems to teach my classes.
III. HOW I TEACH USING THE PROBLEM METHOD

I currently teach Civil Procedure I and II entirely by the problem
method. I have a total of thirty-eight problem sets, twenty for first
semester and eighteen for second semester.34 Most of these problems
cover one subject area, for example "Amendments to Pleadings," and
most are designed to be taught in one class period, although a few take
a little more or less class time. The overwhelming majority are simi
lar in structure, format and purpose. Those that differ are the first
two problems (which are drafting exercises based on a fuller set of
facts) and a few second semester problems (which take the students
step by step through some difficult Supreme Court decisions, rather
than presenting facts of their own). I will describe those later.35
Most of the problem sets fit onto one typed page, and are com
posed of a number (typically three to five) of shorter, individual
problems. The facts of the problems are pretty bare-bones: only what
is necessary to get across the concept I am trying to teach. My inten
tion is that the students should be able to come up with a first draft
answer to the problems in about an hour or two, assuming they have
done the background reading first.
The students are assigned each problem set before we have cov
ered the material in class. The students are supposed to determine
the best answer, using only the Federal Rules, some explanatory tex
tual material, and occasionally a case or two assigned from the
casebook. 36 The students are allowed and encouraged to work to
gether in small groups when preparing answers. Students are re
quired to bring a written answer to class. I inform students in the
34. See app. A for a list of the problem sets.

35. See infra note 78 and accompanying text.
36. I explicitly discourage students from doing additional research, i.e., looking up
cases on point. I want students to try to solve the problem themselves and to come up
with their own arguments. I do not want students to find and rely on the arguments
made in a reported case.
syllabus and during the first class that I do not normally collect and
review the written answers, and never grade the problems. I do, how
ever, inform the students that I reserve the right to collect and review
their answers for sufficiency if I feel they are not making a serious
effort at completing the problems. I have never felt the need to under
take such a review.
In class, I proceed through the problem assigned for that day, call
ing on students at random and asking the students to give me their
answer for each problem. Many of the problems are designed so that
the average student will not usually get each question completely
right. Much of the class is spent in a modified Socratic dialogue with
the selected student and others as to whether, and how, the answer
could be revised to be more correct, more complete, or more
sophisticated.
Each section of each problem is usually designed to illustrate only
one or perhaps two points. The questions normally start out fairly
easy, with a definite right answer. I use these introductory questions
to teach the basics and to start a simple policy discussion of how that
specific rule is designed to work. Later questions, although remaining
simple in form, become more difficult. Each problem set often ends
with a problem that does not have one correct answer. It contains an
issue (either of the meaning or the specific application of a rule) that
can reasonably be argued in more than one way.
A good example of this format is the problem set on "Counter
claims," which comes fairly early in the first semester.37 The first
problem describes a case in which the defendant has a possible coun
terclaim which is completely unrelated to the plaintiff's claim and is,
therefore, a permissive counterclaim. 38 The second problem describes
another case with a clearly related, and therefore compulsory, coun
terclaim. The questions not only ask the students whether the defen
dant mayor must include the counterclaims, but also ask follow-up
questions designed to get students to think about the policies behind
the rule and the ramifications of the rule for both the legal system and
practicing attorneys.
37. See app. B, problem 5: Counterclaims.

38. ld. Problem 5, question l(a) first describes a potential counterclaim which is
completely unrelated to the plaintiffs claim, and asks whether as defendant's attorney
you are "prohibited from putting it in the answer, permitted to put it in the answer if
you wish, or must you include it in the answer? Since Rule 13(b) Permissive Counter
claims reads: "tal pleading may state as a counterclaim any claim against an opposing
party not arising out of the transaction or occurrence tbat is the subject matter of the
opposing party's claim," the answer is that defendant is permitted, but not required to
include it. FED. R. Cry. P. 13(b).
The final problem in the counterclaim set poses a factual situation

in which there is a valid argument that the proposed counterclaim
could be either permissive or compulsory. This is the first of many
opportunities throughout the course that students have to recognize
and deal with an issue permitting alternative answers. Learning to
recognize and explain that there may be two possible answers, rather
than just picking what they think is the right one, is one of the most
difficult concepts for first-year law students to grasp. I therefore try
to include such an issue in most of the problem sets.
It may be useful to examine how I use several problem sets to
teach an entire unit in the course; for example, the unit on discovery.
I teach the discovery process in four class sessions, using four problem
sets. 39 These problems differ slightly from the majority of the
problems because I use the same basic set of facts for the whole unit.
As with the other problems, however, I keep the facts simple, using a
situation where someone has been injured in an automobile accident
when hit by a commercial truck. She is suing both the driver of the
truck for negligence and the company, both for its negligent mainte
nance of the truck and under a theory of respondeat superior for the
driver's negligence. The four problem sets I use to teach the unit in
clude one on the general rules and methods of discovery,40 one on tak
ing depositions and their use in court,41 one on mental and physical
examinations in a personal injury case,42 and one on the work-product
doctrine. 43
The introductory problem set asks the students to put themselves
in the position of plaintiff's attorney. The problem lists items of infor
mation students would want to obtain, asks students how to obtain
the information, and asks whether the efforts would be successful.
The problem is designed with several purposes in mind. First, I want
the students to become familiar with the various methods available
for obtaining information, both under the formal discovery process
and also by more informal means. I want students to consider not
only which discovery devices can be used in a situation, but also the
advantages and disadvantages of the various methods when more
than one can be used. Second, I want to acquaint students with the
general standard of what is discoverable {relevant and not privi
39. See app. B, problems 7-10.

40. See app. B, problem 7: General Rules of Discovery.
41. See app. B, problem 8: Depositions.
42. See app. B, problem 9: Mental and Physical Exams.
43. See app. B, problem 10: Work Product.
leged).44 Third, I want to give students a feel for the process of discov
ery (how it proceeds through time and the roles of attorneys and
judges).
The first question asks students if and when they would be able to
obtain, from the corporate Defendant (1) all eyewitnesses known to
the Defendant, (2) which eyewitness the Defendant intends to call at
trial, and (3) what expert witnesses the Defendant intends to call. 45
As it turns out, Plaintiff is entitled to all of this information, but each
piece of the information is discoverable under a different section of the
Federal Rules and at a different time in the process. 46 This requires
the students to read the Federal Rules, especially Rule 26, very care
fully, including several cross-references to other rules. 47
By the time students get to class, most have correctly determined
which section of the Federal Rules makes each of the required pieces
of information discoverable. Usually, however, students have not de
termined exactly how the discovery rules work, or why the Federal
Rules were written and timed the way they are. For example, Rule
26(a) requires that the names of all eyewitnesses be disclosed within
ten days of the initial discovery conference. 48 When I ask exactly
when that conference would take place, the students (who usually
have not thought this through), must then find and apply the rule on
discovery conferences, which in turn refers students to the rule for
scheduling conferences, Rule 16.49 Since each piece of information
must be turned over at a different time in the process, I am able to
question the students as to why a certain order is prescribed. For ex
ample, why must the names of expert witnesses to be called at trial be
disclosed considerably earlier than the names of eyewitnesses who will
be called?
The second question in this introductory set asks how the plain
tiffs attorney would obtain a version of the accident from several
44. "Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action .... " FEn. R. Orv. P.
26(b)(1).
45. See app. B, problem 7, question 1.
46. The names of all known eyewitnesses must be turned over without request,
fairly early in the process, pursuant to Rule 26(a)(1)(A). FED. R. Orv. P. 26(a)(1)(A). The
names of which witnesses the party intends to call must be provided, but not until
thirty days before trial. FED. R. Orv. P. 26(a)(3)(A). The names of expert witnesses to be
called must be disclosed ninety days before trial. FED. R. Orv. P. 26(a)(2).
47. FED. R. Orv. P. 26.
48. "[T]hese disclosures shall be made at or within 10 days after the meeting ofthe
parties under subdivision (f)." FED. R. Orv. P. 26(a)(1).
49. Rule 26(0 requires the parties to meet and develop a discovery plan "as soon as
practicable and in any event at least 14 days before a scheduling conference is held or a
scheduling order is due under Rule 16(b)." FED. R. Orv. P. 26(0. Rule 16(b) requires
that the scheduling order be issued within ninety days after the appearance of the de
fendant. FED. R. Orv. P. 16(b).
sources, including the police, an eyewitness, the Plaintiff and the De
fendant. 50 This question focuses more on the tactics of discovery than
on interpretation of the Federal Rules. I use it to encourage the stu
dents to think not only about whether a formal discovery request (i.e.,
deposition, interrogatory, request for documents) would be allowed,
but whether it might be better to use an informal request or interview
outside the rules of discovery. We also discuss which of the various
discovery methods (i.e., deposition versus interrogatories) would be
better in certain circumstances.
The final discovery questions in the first set introduce simple ex
amples of what is relevant and what is privileged. The questions also
illustrate the difference between relevance and admissibility. The
first problem set on discovery usually takes somewhat longer than one
class period and leads directly to the next set of questions which deals
with depositions.
The first part of the deposition problem set involves a more de
tailed look at the mechanics of taking a deposition and how mechanics
vary depending on the identity of the deponent. 51 The second part of
the deposition problem set focuses on Rule 32, which governs when a
deposition may be introduced at trial. The problem posits the deposi
tion of four different persons and asks whether each deposition would
be admissible.52 The problem set is designed to get the students to
make a careful and precise application of a difficult and technical rule,
Rule 32(a).53
The final question in the deposition problem set goes one step fur
ther by asking whether the corporate Defendant could have the co
Defendant driver's deposition admitted. 54 Since Rule 32 allows a
party's deposition to be admitted by "an adverse party,"55 the problem
requires students to grapple with the conceptually difficult issue of
whether, and in what situations, two co-Defendants can be considered
"adverse" parties. The final question is again designed to give stu
dents practice dealing with questions that have no clear right or
wrong answer.
The third problem set covers mental and physical examinations. 56
It explores how and why the procedures and standards for mental and
physical examinations differ from all the other discovery devices. This

53. FED. R. Crv. P. 32(a).
55. FED. R. Crv. P. 32(a)(1).
56. See app. B, problem 9.
also allows for a fuller discussion of privilege: how and under what law
a privilege can be created or waived.
The fourth and final problem set on discovery addresses what
kind of protection from discovery is provided for ''work-product,'' that
is documents prepared in anticipation oflitigation. 57 This last prob
lem, on work product, clearly illustrates the difference between the
case method and the problem method. The main case on work product
is Hickman v. Taylor,58 a United States Supreme Court opinion from
1947. Hickman determined just how much protection would be
granted to work product material, and in what situations. In 1970,
the Federal Rules were amended to codify Hickman. 59 When I taught
this material by the case method, I began with an extended discussion
of Hickman, and then concluded the class with a shorter discussion
and some hypotheticals designed to show how the law of this case was
codified into the Federal Rules, and how the rule applies in different
situations. Now, although I have the students read Hickman, the
problem (and our class discussion) asks the students to address how
certain requests for attorney work-product would be handled under
the Federal Rules. Although Hickman comes into play, it is mostly an
aid to help define the purpose and meaning of the Federal Rules when
there is some question regarding their application. This more closely
replicates how an attorney would go about solving a work-product is
sue in real life.
IV. AN EVALUATION OF THIS METHOD

In this section I will review the benefits and shortcomings of my
own brand of problem method. I will concentrate mostly on what I
perceive to be the benefits of this teaching method. Although I will
mention some of its shortcomings, I must state, up front, that I am, for
the most part, very pleased with this approach and consider its good
points to far outweigh its detriments. I will base some of this assess
ment on my own, admittedly biased, personal perceptions, but I will
also include some student assessments made on their regular course
evaluation forms,6o as well as the results of some empirical research I
have conducted.
57. See app. B, problem 10.

58. 329 U.S. 495, 67 S.Ct. 385 (1947).
59. FED. R. CN. P. 26(b)(3) (amended 1970).
60. Sometime during the last week of classes, students in every class fill out anony
mous course evaluation forms. Students are asked to give comments and numerical
grades to various aspects ofthe course, the professor, and the teaching materials. These
are available for the faculty member to see, but only after student grades have been
submitted.
The empirical research involved comparing my Spring 1998 Evi

dence class, which I taught by the case method, with my Spring 1999
Evidence class, which I taught using the problem approach.s1 Unfor
tunately, I was not able to make this direct comparison for my Civil
Procedure class, since by the time I started this study I was using the
problem method exclusively for this course and did not want to give up
its benefits, even for one section, in the name of research. I did, how
ever, conduct a comparative study of two different ways of using my
problem approach in Civil Procedure. For my Fall 1997 class, I fol
lowed my normal procedure and required the students to prepare and
bring an answer to the problems to class. I encouraged, but did not
require students to revise their answers after class. I did not collect or
review the written answers. The following year, I required the stu
dents to turn in a revised, typed version of their answers one week
after we covered each problem set in class. I then reviewed the
problems, made significant written comments and corrections, and re
turned the problems to the students approximately one week later. I
will incorporate the results of these studies at the appropriate places
in the article.
A. BENEFITS
For me, the greatest benefit of the problem method is that classes
are more lively and interesting. First, students are more willing and
able to participate. Students almost never ask to "pass" because they
are unprepared. For years I bemoaned the fact that although my first
year students answered my questions quite willingly, if not always en
thusiastically, trying to get responses from most of my Evidence stu
dents seemed like pulling teeth. Getting students to respond was so
difficult that in some years I abandoned my normal practice of calling
on students at random and began relying mainly on volunteers. I at
tributed this difference to the eagerness of first-year students and the
fact that by the time students reach second year, most students have
been beaten down by the law school system and are much less
enthusiastic.
61. Most of my explanations so far focus on how and why I use the problem method
for teaching Civil Procedure, rather than Evidence. Most, if not all of what I have said
also applies to the Evidence course. Although Evidence is a second, rather than first
year course, in most other respects it is more similar to a first-year than to most other
upper-class courses. It is a required course, not an elective; it is usually taught in large
class sections; it is the first (introductory) course in the area; and the substantive law is
mostly governed by a set of federal rules. The problems I have developed for teaching
Evidence and how I use the problems in class are very similar to those I use to teach
Civil Procedure. Unfortunately, for the two years covered by my study, due to a quirk in
scheduling, my Evidence classes were much smaller (twenty-six and twelve students
respectively) than the usual number of fifty-seventy.
Between my 1998 and 1999 Evidence classes, however, I managed

to write problems for all the Evidence classes and taught the 1999
class by the problem method. To me at least, the difference was as
tounding. The students were much more willing to respond, and their
responses were greatly improved. I actually began to look forward to
teaching Evidence (as I do with Civil Procedure) rather than dreading
it, as I had come to do.
Earlier, I had found a similar, albeit more gradual improvement
in my Civil Procedure class as, over the years, I added to the number
of classes I taught by the problem method. This improvement showed
up, not only in the increased willingness of the students to answer, but
also in the quality of their responses. While students do not always,
or even usually, give me a correct and complete answer at first (and
the problems are mostly designed so that students will not), the num
ber of times that a student completely "misses the boat" is much fewer
under the problem method than with the case method. The fact that
my problems tend to keep the student focused on the right issue is for
me a very important factor in its success.
When a student gives an answer that is completely off track (and
first-year students are remarkably inventive in coming up with nu
merous ways of trying to answer a question while avoiding the real
issue), the professor is presented with a real dilemma. Do you try to
lead this student back (while others in the class sit uninvolved, or
worse yet roll their eyes in impatience), or just go on to another stu
dent? When a student, however, has understood the question and
found the right rule governing the situation but misinterpreted, or
misapplied the rule (especially when he or she has done so in a way
similar to that of many other classmates), the professor is presented
with a good teaching opportunity. The hope is, of course, that creating
a dialogue with the student that gets him or her to correct or improve
the answer will prove helpful to the many students with the same, or
similar answers.
The problem method helps in this regard by affording me some
what more control and predictability as to what the students' initial
answers will be. When a student is answering a question based on a
long, complicated case with several issues, there are many ways that a
student can get off track, including getting the facts wrong or misun
derstanding the substantive law involved. While helping the student
correct these mistakes might prove personally helpful to the student,
helping the student will not improve the class if the mistake has noth
ing to do with the area under study, or if the mistake is totally differ
ent than the mistakes made by most of the other students.
Using short, focused problems with simple facts allows me much

greater control and predictability as to what kind of mistake a student
is likely to make. If! write question properly, many students will en
counter similar difficulties when answering the problem, which is de
signed to help students understand the issue under study. If some
students seem to be led off track by an extraneous element, or con
fused by certain facts, I can change the problem, so that during the
following year students are more focused on the relevant principle of
law.
Several examples of this "learning by mutual mistake" technique
occur in the problem on "Amendments to the Pleadings."62 Under the
Federal Rules, some amendments may be made "as of course" and
some only "by leave of court or permission of the adverse party."63
The first question posits a situation in which the plaintiff wants to
amend the complaint twenty-five days after its service and ten days
after receiving the defendant's answer. In part A, the students are
asked to determine whether the plaintiff needs permission to amend.
Most students reach the correct result (that permission is needed), but
some students reach the right answer for the wrong reason. This al
lows me to discuss the two different situations where a party will need
permission to amend and why this fits into one, rather than the other.
Part B of the question asks the students, whether as defendant's
attorney, they would give their consent to plaintiffs request to amend,
or would they force the plaintiff to get leave of court from the judge.
Most students, striving to be tough litigators, decide that they would
require the plaintiff to go before the judge (even though the facts are
such that the judge would almost surely grant the requested leave).
When I get this expected answer in class, I can, through role play
(where I play the annoyed judge), show why it might not be such a
good idea to force an adverse party before a judge to make a request
that will almost certainly be granted. The role play technique seems
much more effective than merely explaining the reasoning to the
class.
Of course, one reason that students are both more willing and
more adept at answering the questions in class is that the students
have already done so outside of class. Unlike the case method, where
the students usually do not know in advance what the questions about
the case will be, my students have already tried to answer, outside of
class, the same ones that they will have to answer in class. Some stu
dents have followed my suggestions by discussing the problems with
other students. It is not surprising then, that their answers are better
62. See app. B, problem 6: Amendments.

63. FED. R. Crv. P. 15(a).
the second time through. It also makes sense that students are more
willing to answer a question in class if they have had the opportunity
to test that answer with a small group of their colleagues first.
It is also likely that students learning by the problem method
spend more time preparing for class. 64 With the case method, stu
dents read the assigned cases, but then do not have any specific as
signment. Students may re-read the case or brief it, but at that point,
most students consider their preparation complete. With the problem
method, however, a student's main task still lies ahead after having
completed the assigned reading. The most significant results I found
in my study of the differences between my Evidence classes taught by
the two methods was in out-of-class preparation time. I asked both
classes to keep an anonymous daily record of the amount of time spent
preparing for class. Students in the class taught by the problem
method spent more than twice as long preparing for class, which pre
sumably helped the learning process and improved their in-class
performance.65
This brings us to the question of what the students think about
the problem method. Do students consider this extra work helpful, or
is it an unwanted burden? The latter is certainly possible, since in
most oftheir other substantive courses, students are asked to do little
or no outside work beyond than reading the assigned material. Year
after year, student response to the problem method has been over
whelmingly positive. On the official student evaluation forms, one
question asks the student to comment on the teaching materials. An
overwhelming majority of students comment on how helpful the
problems have been,66 often using superlatives that you do not typi
cally hear from law students, such as the problems were "fabulous" or
"wonderful," and that they "loved" the problems. 67 There are virtually
64. "All this [preparing for class under the problem method] takes more time and
effort than studying for class under the case method ...." Moskovitz, 42 J. LEGAL
EDuc. at 254.
65. Students in the class taught by the case method reported spending an average
of 103 minutes per week preparing for class, while students in the problem-method
class reported spending an average of 234 minutes per week. This difference was signif
icant to the .05 level. See tbl. 1.
66. In my Fall 1998 Civil Procedure class, of the fifty-four students who gave any
written comments at all, forty-five commented positively about the problems and only
one negatively. In my Fall 1999 Civil Procedure class, fifty-three of sixty-five students
commented positively about the problems and none negatively. In my Spring 1999 Evi
dence class, twelve of thirteen commented positively about the problems.
67. Student Civil Procedure Evaluations from 1997-1999 (anonymous). Some
other typical comments about the problems in the evaluations were: "very effective,"
"very helpful," "very useful," "great," "an excellent way to learn the material and be
able to test your knowledge by answering the questions," and "the problems really al
lowed me to be able to explore the material and learn the subject matter." My personal
favorite, however was "Problems rock!"
no negative comments about the problems68 or the problem method

itself.69 When I used to teach only the first semester by the problem
method, many second semester students commented to me personally
that they wished there were problems to do in the second semester as
well.
B. DOES IT IMPROVE STUDENT EXAM PERFORMANCE?
At this point, I can sense that the reader might be saying: "O.K.,
so classes seem more interesting, students are working more and per
forming better in class, but are students learning the material and
skills any better than with the case method?" For better or worse, we
generally measure student performance in law school, especially in
large first-year courses, by their grades on a final examination. So the
question becomes whether teaching the same material by the problem
method produces higher exam scores than teaching the same material
by the case method. I certainly expected that it would. One of the
criticisms of the case method is that it does not provide students with
sufficient practice at the skills needed for law school exams or for the
practice oflaw. It is my intention when I write the problems to pro
vide students with as much practice as possible at the same tasks they
will be asked to perform on the final exam. My final exams are practi
cally identical in format and very similar in content to the problems
the students have worked on all semester. I do not hide this fact from
the students, but rather I make it clear to the students right from the
first day of class. While I change the facts just enough so that stu
dents cannot merely recognize the problem and spit back the same
answer as in class, my exam questions are often not much more than
the issues from two or three problems put together into one fact pat
tern. It seemed intuitively obvious, therefore, that the students
taught by the problem method would outperform students taught by
the case method. In fact, the students who had worked all semester
on problems so similar to the exam would seem to have had such an
advantage that any performance enhancement might not fairly be at
tributed to the superiority of the teaching method, but merely famili
arity with the exam material and format.
68. I have received only three negative comments in the last three years on the
Student Evaluations from 1997-1999. Each student commented that the problems were
"circular," "too difficult," and "vague." Student Evaluations from 1997-1999.
69. Some students complain that I sometimes change the facts of a problem while
we are working on it in class. Although I try not to do this too often, it often seems
necessary to illustrate a point or answer a student's question. When I switched from
the case method to the problem method, my overall performance rating for teaching
Evidence went up from 3.29 to 3.67 (on a 4.0 scale) This difference was not quite statis
tically significant, possibly due to the unusually low number of students in the class
these years. See tbl. 2.
Yet to my great surprise, when I compared the performance of my

1999 Evidence students (problem method) with that of my 1998 class
(case method) on exactly the same exam, there was no difference. 7o
Even more surprisingly, when I compared my 1998 Civil Procedure
class which had done the problems twice and received feedback from
me, to the 1997 class, which had done the problems only once and re
ceived no written feedback, there was also no difference. 71
I tried to find a plausible explanation for what seemed like an
entirely implausible result. It was not caused by the fact that the stu
dents in the classes that were expected to do better were less able. In
both Evidence and Civil Procedure the students in the two classes
were very well matched on a number of important indicators. 72 I was
baffled and somewhat disappointed until I became more familiar with
the educational research into teaching methods.
There is a consistent body of findings, both in higher education in
general and in legal education, which shows that, if subject matter
and professor remain constant, differences in teaching methods do not
normally result in differences in student performance. 73 These find
ings hold true, even if (as in my study) one of the two methods results
in students spending more time on tasks which are closer to those
tested on.
70. The mean exam score (out of 100 points) was 54.9 for the case method-class and
57.5 for the problem-method class. This small difference was not statistically signifi
cant. See tbl. 3.
71. The no-feedback class had a mean exam score of 62.2, which was actually
higher that the feedback class mean of 58.9, but this small difference was not statisti
cally significant. See tbl. 4.
72. I compared the first-year law school grade point average for the students in the
two evidence classes, and found that the averages were virtually identical. For the first
year students, I compared their Law School Admission Test ("LSAT") scores and their
undergraduate grade point averages. Again, these were virtually identical for the two
classes. I also tried to control for any differences in the way I graded from one year to
the next by mixing in blindly and re-grading a number of the first year's exams while I
was grading the second year. I realize, of course, that proper experimental design
would have had students randomly assigned to the two classes in the same year. This
was just not practicable under the circumstances.
73. For an excellent article describing and explaining this phenomenon, see Teich,
36 J. LEGAL Enuc. at 168-69, who states:
Recent research results concerning law teaching have been consistent with re
sults in higher education generally. Both traditional and specially developed
experimental group law-teaching systems have recently been shown to function
equivalently in terms of teaching effectiveness in several studies were effective
ness has been evaluated by a method's impact on group wide achievement.
Tiech, 36 J. LEGAL Enuc. at 168-69. Teich also reported that a limited number of stud
ies have shown, however, that highly individualized instructional methods such as com
puter-aided instruction can have a positive effect on student test achievement. ld. at
184. This is consistent with the results of an earlier study I conducted showing that use
of CALI computer programs by students in my Evidence class increased their scores on
my exam. Stephen Shapiro, The Use and Effectiveness of Various Learning Materials in
an Evidence Class, 46 J. LEGAL Enuc. 101 (1996).
Perhaps the best example of this phenomenon is a study con

ducted with students in a Business Law course at Ohio State Univer
sity.74 In the study, 643 students were randomly divided into four
groups. All of the groups were assigned the same textbook. Two of the
groups received instruction in a standard lecture format. The other
two groups were taught using an integrative approach. For each
class, students were required to hand in written answers to previously
assigned problems. The in-class lecture made use of the problems in
presenting the material. The students were given a quiz on each sec
tion's subject matter at the end of the session and were given the cor
rect answers to the quiz before leaving the class. At the end of the
semester, all students were given a fifty-question multiple-choice ex
amination similar to the in-class quizzes that the two experimental
groups had taken throughout the semester. The researchers found no
significant differences among the four groups in performance on the
final examination. 75
My findings, therefore, although surprising and disappointing to
me, were not out of line with other research. Moreover, I am not en
tirely convinced that even though a difference does not show up in an
exam at the end of the semester, that some additional learning is not
taking place in the problem classes, which will benefit the students in
the long run. I have long felt that the learning curve for many law
students is not one of gradual improvement over time. Rather, it often
seems like there are long periods without much movement and then
rather sudden and steep increases in a student's ability. This seems
particularly true of first-year students, who for varying lengths of
time do not seem to have a clue as to what is expected of them. Then,
at some point, for the quicker students during the first semester and
later for others, a light bulb seems to go on and the student begins to
understand how to "think like a lawyer." It may be that the problem
method does not increase the number of students who "get it" during
the first semester, but may have more long-term benefits. Such a
question would be interesting to study, but is beyond my capacity as a
dilettante researcher.
While I was disappointed that the problem method did not seem
to improve student performance on the exam, the fact that perform
ance is unchanged will not affect my decision to continue a method,
that both the students and I like, gets students to willingly spend
more time on the subject, and improves the quality of class time.
74. John Blackburn & Edward Niedzwiedz, Do Teaching Methods Matter? A Field
Study of an Integrative Teaching Technique, 18 AM. Bus. L. J. 525 (1981).
75. Blackburn & Niedzwiedz, 18 AM. Bus. L. J. at 525.
C. SOME SHORTCOMINGS AND How TO MINIMIZE THEM
The most obvious drawback to the problem method compared to

the case method is that the problem method neglects the important
skill of learning to read, analyze, and use case law. This might be a
serious problem if all or most first-year faculty used the problem
method exclusively. That, however, is not the case at the University
of Baltimore, or at most other law schools; nor is there a danger of it
happening anytime soon. All of the other faculty who teach the same
first-year section that I do primarily use some version of the case
method. Many of the other first-year subjects, especially torts and
criminal law, lend themselves more readily to this method. While
such common-law based subjects could also be taught by the problem
method, these subjects are not quite so easily adapted as statutorily
based courses such as Civil Procedure, Evidence, Commercial Law
and Tax. 76 Thus, I can ignore the skill of case reading with a clean
conscience, leaving it to my esteemed colleagues.
Even in Civil Procedure, however, there are certain areas of the
course that do require the analysis of case law. The Erie doctrine and
personal jurisdiction are each governed by a series of United States
Supreme Court opinions delivered over a number of years. As far as I
know, no one has come up with a satisfactory means for teaching this
material other than having the students read, analyze, distinguish
and harmonize these decisions. For many years, even after I was us
ing the problem method for other parts of the course, I kept using the
standard case method for these areas. Then I realized that I could
even adapt the problem method for use here. Rather than have the
students read the cases before class, and then merely question stu
dents about the cases in class, I wrote down, in a systematic way, each
question that I wanted students to think about as they read through
the cases and the questions I would ask students in class. I put these
into a problem format and asked students to prepare answers and
bring the answers to class. Not surprisingly, I noticed an improve
ment in their preparedness to deal with my questions in class.
The kinds of problems I use (with very simple facts and directed
toward one issue at a time) might be subject to criticism by proponents
of a more typical problem approach (where the problems are more
complex, with fuller and more realistic facts).77 Students would argue
that lawyers are never confronted with legal problems involving sim
76. 1966 Annual Meeting, 1966 AsS'N AM. L. SOH. at 209.

77. "Wouldn't it be just as effective to give the students a set of short hypos before
class? No. A problem is more than a collection of hypos. It is an integrated story with
elements that must be identified, extracted, and organized into a coherent structure."
Moskovitz, 42 J. LEGAL Enuo. at 256.
268 CREIGHTON LAW REVIEW [VoL 34
pIe facts and one issue. 78 My problems do not help students learn the
important skills of sifting through the facts to separate the relevant
from the irrelevant in solving a more complex, multi-faceted problem.
This is certainly true. I think the kind of integrational skills taught
by more complex problems are important ones for law students. I
agree with those who advocate the use of such problems in advanced
courses. I do not, however, think that a first-year Civil Procedure
course, where students still have not learned more basic skills of legal
reasoning and statutory construction, is a good place to teach these
more complex skills. It is possible that, as a matter of personal prefer
ence, my problems are simpler and more compartmentalized than
they need to be. I can imagine someone else using somewhat more
complex problems to accomplish many of the same goals. I do try to
include at least of few of these kinds of problems, especially at the
conclusion of some units, like the Erie doctrine and personal jurisdic
tion. I also use a few problems with fuller facts in areas of the law like
declaratory judgments, where the legal rule is simple, yet leaves a
great deal of room for argument about whether a specific situation sits
on one side of the line or the other.
I do realize that by keeping my problems simple and directed at
only one rule or area of the law (and with that area identified at the
top of the problem), I may not be giving my students enough practice
at recognizing when a certain issue needs to be addressed. I some
times see this deficiency on their final exams. Here is an example:
As I described earlier, one of the problems is supposed to teach
the difference between permissive and compulsory counterclaims. 79
On a recent exam, I gave the students a question in which the plaintiff
sued the defendant in state court. Defendant had a claim that was
somewhat related to the original claim (and could arguably have been
a compulsory counterclaim). Instead of bringing it in the state court
lawsuit, however, defendant brought it as a new lawsuit in federal
court. The question posited that the plaintiff asked the federal judge
to dismiss the defendant's suit, arguing that the claim could only be
brought in the ongoing state court lawsuit. A significant number of
students wrote only about whether federal subject matter jurisdiction
(diversity) existed for the claim and ignored the real issue of whether
it was closely related enough to have been a compulsory counterclaim
in the original lawsuit. Most ofthese students probably knew the dif
ference between a compulsory and permissive counterclaim, and had I
78. "A lawyer in practice does not receive a list of hypos from the client. The law
yer gets a story, and must sort out interrelated issues based the on the questions to be
resolved and the rules oflaw that apply." Moskovitz, 42 J. LEGAL EDUC. at 256.
79. See supra notes 37-38 and accompanying text.
asked students directly which the defendant's claim was, could have
given a reasonable answer. However, students were not able to iden
tify that this was the issue. The reason is perhaps that students did
not have enough practice at the skill of finding the correct rule to
apply.
I note, however, that among the students who did realize that the
issue was whether the counterclaim was permissive or compulsory, a
significant number merely concluded that it was one or the other,
when the facts clearly gave the students enough leeway to explain
why it could reasonably be argued either way. This mistake was cer
tainly not caused by a lack of familiarity with spotting this kind of
situation where there are two possible results, since this was a central
theme of many of the problems students had done, including the one
on counterclaims. It may be that certain skills are difficult for stu
dents to master no matter how much practice we give them.
Another problem that I sometimes worry about is whether my
classes are a little too programmed and predictable. The problems are
so directive, and at this point so well-tuned, that there is sometimes
little variance from year to year in the class discussion. This in itself
may not be too bad, since the students in each class do the problems
only once and there are enough differences and challenges that I do
not get bored doing the problems once a year. I do wonder, however,
whether the students should have a little more opportunity to think
outside the box and to be a little more creative. First year law school
might do too good ajob at forcing students to think linearly and deduc
tively. I suppose that another teacher with more tolerance for unpre
dictability could write problems that allowed the students more
opportunity for creativity and still accomplish many of the same goals
that I seek to achieve.
For me there is no turning back. At this point I could not imagine
teaching Civil Procedure or Evidence by anything other than the prob
lem approach. I have already begun thinking about changing my last
remaining course, Civil Rights Litigation, to a problem format. If af
ter reading this far, you think you would like to try this approach in
some of your classes, I will present, in the next section, some practical
tips for getting started.
V. SOME HELPFUL HINTS

The kind of approach to teaching by the problem method which I
have described will work for nearly any course. I think it is most use
ful in first-year courses and in other introductory courses where stu
dents will be learning the basics of a subject area, such as Evidence,
Commercial Law, Introductory Income Tax, etc. If you want to use the
problem method for more advanced courses, I think it would be better

to use longer, more complex and more realistic problems.
I also think that my approach works best with a statutory, as op-
posed to a common-law or constitutionally based subject area, espe-
cially for first-semester, first-year courses. This is because in
statutory courses, the students can go to one source that states the
currently applicable law of a specific jurisdiction, and answer the
problem based on that law. With common-law courses, it is much
more difficult for the students to find and apply the same law. There
will often be conflicting cases from several jurisdictions. Even when
the law is from one jurisdiction (i.e., federal) there are usually changes
in the law over time. This means that students may have to read sev-
eral cases before they have an idea of what the current status of the
law is. This is not to say that the problem method cannot be used for
common-law courses, and in fact, I now use it for the common-law
parts of Civil Procedure, such as the Erie doctrine, personal jurisdic-
tion and res judicata. I put these subjects off until second semester,
however, when the students are a little more adept at harmonizing
conflicting cases, and even then I do not think it works as well as with
the statutory material.
If you are going to try my approach (or one similar to it) for teach-
ing a first-year course, then I would advise you to try writing the
problems yourself. Although writing your own problems involves a
large amount of work, I think it is worth it in the long run. Doing so
allows you to teach exactly the subject areas, issues and skills that
you want. It also allows you to tailor the problems specifically to the
ability of the students in your class. The average student varies quite
considerably throughout the range oflaw schools in the United States.
Many ofthe teaching materials for law students are written by faculty
members at elite law schools. Since these are usually developed from
materials that the professors have used in their own classes at these
schools, many of casebooks contain problems that I consider too diffi-
cult for many law students.
My first advice for those of you who would like to try a problem
approach to teaching would be to start slowly. Pick one or a few class
sessions that you think would benefit from the problem method and
try these first. You can try to write the problems either before or after
the class in question. If you are writing it before class, go over your
notes from last year and try to come up with a hypothetical that illus-
trates each of the points that you cover for that class. In some cases I
have found it easier to write a problem set immediately after teaching
a class. I then have fresh in my mind what the real issues were, which
hypotheticals or factual situations worked best, and where students
seemed to need more work. The downside to this approach, of course,

is that you will not be able to use the problems until the next year
(although you might find the problems helpful when preparing that
year's exam).
There are a number of sources you can use to help develop you
problems. First, there are your own hypotheticals that you have been
using in class. It obviously helps if you are the kind of person who has
been writing the good ones into your notes. If not, and you, as I did,
often rely on spur-of the-moment hypotheticals to clarify a point in
class, then begin to immediately write the hypotheticals down at the
end of class.
Another source of your own problems is your old exam questions,
or parts of the exams. If you used the questions to test the students,
then the questions obviously covered issues that you wanted students
to learn. Another source can be the facts of cases, modified or simpli
fied to meet your needs. Be careful about basing problems on the facts
of cases that you assign your students to read. If the facts of the case
and the problem are similar, but not exactly the same, the students
may get the facts confused when trying to do the problem. Also, the
closer the facts of a problem are to a case that the students have read,
the more likely students are to just give the court's opinion rather
than answer the question themselves.
An additional source of problems can be Center for Computer-As
sisted Legal Instruction ("CALI") exercises. so At least in the subjects
with which I am familiar, Civil Procedure and Evidence, I find many
of the CALI problems to be quite similar in design to the kind of
problems I use. 81 Even if you do not want to use any of the CALI
problems themselves (which would be allowed if your law school is a
member) the problems can provide you with some ideas for your own
problems.82
80. The Center for Computer-Assisted Legal Education is a not-for-profit corpora

tion which produces more than 120 "Computer-Based Lessons" in twenty-eight subject
areas. See CALI-2000: THE CALI CATALOG, CENTER FOR COMPUTER-AssISTED LEGAL ED
UCATION (1999).
81. The kinds of exercises available varies widely, including collections of short
hypotheticals (see, e.g. The Concept of Hearsay), problems based on a complex factual
situation (Drafting a Complaint) and games where students conduct litigation against
one another (Buffalo Creek: A Game of Discovery). CALI-2000: THE CALI CATALOG,
CENTER FOR COMPUTER-AsSISTED LEGAL EDUCATION.
82. The only exercise that I actually use in class is "Drafting a Complaint," which
helps the students through the process of drafting a complaint in a libel case. I use this
at the beginning ofthe Civil Procedure class, since it is self-contained (it provides all the
law, both substantive and procedural, that the students need to know) and its fact pat
tern lends itself well to in-class discussion. I have found that reviewing several of the
Evidence problems has me ideas for my own problems and exam questions.
Once you have written some problems, how should you use them?
I have found that the problems work best when I give them out to the
students at least one class period before we cover the material. I also
find that it is necessary to require the students to bring in a written
answer to the questions. Whether and to what extent you allow or
require the students to work together on the problems is another ques-
tion you need to decide. I always encourage the students to work in
small groups, although I have never measured to what extent stu-
dents have done so. For several years, I required the students to form
themselves into groups of three. Students were supposed to work on
the problems together, come up with one answer for the whole group
and bring this to class, where they all sat together. I gave this up
because the University of Baltimore is a commuter school, with many
students driving from different areas. Many students also have signif-
icant outside responsibilities including parenting and working part
time. It seemed to be a hardship for many of the students to find the
time to meet with the same group of their classmates on a regular
basis. I still think, however, that this is an interesting idea and might
work better in another setting.
I would not encourage grading, or even collecting the original an-
swers that the students bring to class. First of all, you cannot expect
most students to come up with very good answers when they prepare
answers before the material is covered in class. Second, the problems
are much better received when the students view the problems as
learning aids for their own benefit rather than a graded assignment.
Also, if you grade the problem, you probably cannot allow students to
work together and you have to worry about cheating (either working
with each other or obtaining a copy of another student's answers).
Obviously, I do not worry about students working together, since I
encourage students to do this. I would be concerned if students were
merely copying other students' answers (either from their class or a
previous year). At the beginning of the semester, I explain to students
why this would only be cheating themselves of an important learning
tool, since neither their written answers nor their class performance
has any effect on their grade. I also tell students that I would consider
it an honor code offense if they did obtain and copy another student's
answer. I am reasonably certain that students are doing their own
work.
I always encourage the students to go back and rework the
problems after class. I tell students to do this as soon after class as
possible, and not to wait until the end of a unit or the end of the se-
mester. The procedure I suggest to students is after each class, and
before the next problem is prepared, the student should review the
class notes and the answer to the previous problem. Students should
then put both their original answers and their class notes aside and
answer the problem from scratch using only the Federal Rules. I do
not know how many students are following this regimen and to what
extent. Several years ago, when I required students to revise and turn
in their answers, I got about eighty percent compliance, even though I
told students that there would be no negative consequences for non
compliance.
Whether you should require the students to revise and turn in
their answers is another choice. If you require the students to turn
the problems in, then I think you owe it to the students to give the
problems back with at least some comments and suggestions. I found
it very enlightening the year I did this, but it was an incredible
amount of work: twenty problem sets, times three to five problems per
set, times seventy-five students. Had this significantly improved their
performance I might have felt some obligation to continue, but it did
not seem to have any such effect.83 Now, I merely collect and review
one or two selected problems near the beginning of the semester so the
students can have some feedback. In addition, I have always been
willing to a review student's work if they are industrious enough to
ask me to do so, but this does not often happen.
VI. CONCLUSION
I have developed my own variation of the problem method which
seems to work very well for me and my students. I have described my
approach in this article with the hope that it might start others think
ing about how to integrate some form of the problem method into their
law school teaching method. The form may turn out to be quite differ
ent from the one I use. The point is that I have, after some trial and
error, and a lot of work, found an approach with which both the stu
dents and I are reasonably satisfied. I encourage other faculty, espe
cially those who are not satisfied with the case method, to try using
some version of the problem method.
83. See supra note 70 and accompanying text.

APPENDICES:
(APP. A) LIST OF PROBLEM SETS
Problem 1: The Complaint
Problem 2: The Answer
Problem 3: Service and Time Limits
Problem 4: Raising and Waiving Defenses
Problem 5: Counterclaims
Problem 6: Amendments
Problem 7: General Rules of Discovery
Problem 8: Depositions
Problem 9: Mental and Physical Exams
Problem 10: Work Product
Problem 11: Summary Judgment
Problem 12: Provisional Remedies
Problem 13: Trial by Jury
Problem 14: Motions During and Mter Trial
Problem 15: Amount of Judgment
Problem 16: Declaratory Judgments
Problem 17: Appeals
Problem 18: Introduction to Federal Subject Matter Jurisdiction
Problem 19: Federal Question Jurisdiction
Problem 20: Diversity Jurisdiction
Problem 21: Joinder of Parties Under the Rules
Problem 22: Permissive v. Compulsory Joinder
Problem 23: Interpleader
Problem 24: Supplemental Jurisdiction
Problem 25: Class Actions
Problem 26: Erie R.R. v. Tompkins
Problem 27: Applying the Erie Rule
Problem 28: York, Byrd, and Hanna
Problem 29: A Modern Day Erie Case
Problem 30: Pennoyer v. Neff
Problem 31: Challenging Personal Jurisdiction
Problem 32: Quasi-in-rem Jurisdiction
Problem 33: International Shoe Co. v. Washington
Problem 34: Long Arm Statutes
Problem 35: Mullane, Hanson, and Shaffer
Problem 36: World Wide Volkswagen v. Woodson
Problem 37: Burger King and Burnham
Problem 38: Federal Venue
Problem 39: Transfer of Venue
Problem 40: Former Adjudication Generally
Problem 41: Claim Preclusion
2000] PROBLEM METHOD· 275
Problem 42: Issue Preclusion

Problem 43: Issue Preclusion and New Parties
CAPPo B) TEXT OF PROBLEMS 5-10

PROBLEM 5: COUNTERCLAIMS
1. Paula and Diana are law students. While driving into Baltimore
the first week of school, Diana hit Paula's parked car, doing signifi-
cant damage. Later that quarter, Paula thinks she sees Diana
cheating and publicly accuses her of that. It turns out that the ac-
cusation is untrue. Some months later, Paula sues Diana in tort for
damage to her car. As Diana's attorney, you are preparing an an-
swer. You must decide whether to bring Diana's libel claim as a
counterclaim in her answer.
a. As to that claim, are you prohibited from putting it in the an-
swer, permitted to put it in the answer if you wish, or must you
include it in the answer?
b. What do you think are the policy reasons that led to the rule
being written this way? Do you agree? Are there arguments
that the result should be otherwise?
2. Owner advertises a house in Florida as being in A-I, top condition.
Based on the advertisement, buyer signs a contract to buy the
house for $50,000, and makes a $5,000 deposit. Buyer then visits
the house. While on the visit, buyer falls through a floorboard, in-
juring himself. He then refuses to carry through with the sale.
Owner sues buyer for breach of contract, asking for specific per-
. formance (an order requiring buyer to go through with the sale).
As Buyer's attorney you are preparing an answer. As to each of the
following claims, indicate whether you are prohibited from putting
it in the answer, whether you are allowed to put it in the answer if
you wish, or whether you must include it in the answer to avoid
losing it.
a. Buyer's breach of contract claim for damages (his expenses in
buying and visiting the house and return of down payment).
i. What happens to this claim if Buyer does not include it? May
Buyer add the claim later through an amendment? May the
claim form the basis of a later, separate suit?
ii. What is the policy behind this rule? Do you agree?
b. Buyer's tort claim for damages (personal injuries) due to his fall
while visiting the house.
i. Is the right answer in this case as clear-cut as in 2(a)? How
do you deal with this uncertainty as a law student? How
would you deal with it as Buyer's attorney?
ii. If Buyer includes either of these counterclaims, what plead-
ing must Owner fIle? What will this pleading look like?
PROBLEM 6: AMENDMENTS
1. P flies and serves a complaint on day one. D files and serves an
answer on day fifteen, containing a defense of failure to state a
claim. On day twenty-five, P, realizing his complaint is faulty,
wishes to file an amended complaint.
a. May P amend "as of course," or must P obtain "leave of court or
written consent" of D?
b. If you were D's attorney and received a call from P's attorney
asking for consent to allow P to amend, would you give it?
c. If you were the judge and received a request from P for leave of
court to amend, would you grant it?
d. Same facts as above, but after receiving the Answer on day fif-
teen, P immediately tries to amend on day sixteen. May P
amend "as of course," or would he still need permission?
2. P serves D with a complaint on day one. D files and serves a Mo-
tion to Dismiss for Failure to State a Claim on day fifteen. On day
twenty-five, before the motion is ruled upon by the judge, P, realiz-
ing his complaint is faulty, wishes to file an amended complaint.
a. May he amend "as of course," or must he obtain "leave of court or
written consent" of D?
b. Compare the answers to l(a) and 2(a). Are these answers the
same or different? If the answers are different, should they be?
Is it fair to treat the two plaintiffs differently? Does the differ-
ence really matter?
3. D files and serves an answer to a complaint. The answer does not
contain a counterclaim. Fifteen days later D realizes he has left out
the defense of improper venue. May D, either with or without leave
of court, file an Amended Answer containing the defense?
4. D files and serves an answer to a complaint. The answer does not
contain a counterclaim. Thirty days later D realizes he has left out
the defense of improper venue. May D, either with or without leave
of court, file an Amended Answer containing the defense? Compare
this result with l(a) and 3. Is the difference fair and justified?
5. P serves a complaint on D on day one. On day five, P serves an
Amended Complaint on D. On what day must D plead to the
Amended Complaint?
PROBLEM 7-10: DISCOVERY
The following facts are applicable to Problems 7 through 10:
Paula is injured when her automobile is struck from behind by a
truck, owned by Mom's Catering Service Inc., driven by Denny, an em-
ployee of Mom's Catering. Paula sues Denny, alleging negligent driv-
ing. She also sues Mom's, on both a theory of (1) respondeat superior
(that as Denny's employer they are responsible for his negligence),
and (2) their own negligence in failing to maintain the truck properly.
Pawa claims to have severely injured her back, leaving her in con-
stant pain and unable to work. Denny denies negligence. Mom's de-
fends by denying that Denny was negligent, by denying that Denny
was engaged in his employment duties for Mom at the time ofthe acci-
dent, and by denying negligence in the maintenance of the truck.
PROBLEM 7: GENERAL RULES OF DISCOVERY
FED.R.ClY.P. 26(a), 26(b)(1) and (2), 30(a)(1), 33(a), 34(a)
Assume you are the attorney for Paula, and have determined that you
need the following information to prepare for trial. For each piece of
information listed, indicate:
A. Will either of the Defendants have to supply this information
to you without your having to make a request, and if so, when?
B. If not, how will you go about getting the information? What
methods will you use? Might the defendants argue that it is
not discoverable? What would be their anticipated argument,
and how would you respond to it?
1. The names of:
a. All eyewitnesses to the accident.
b. The eyewitnesses Mom's intends to call at trial.
c. The expert witnesses Mom's intends to call at trial.
2. The version of the accident of:
a. The police.
b. Bob Bystander (an eyewitness).
c. Paula.
d. Denny.
3. Maintenance records of the truck for the two year period before the
accident.
4. As to Mom's Catering:
a. Their net worth.
b. Whether they carry liability insurance.
5. Did Denny make a confession to his priest, asking to be absolved of
guilt for the accident?
6. Were the brakes on the truck replaced after the accident? (Under
the Federal Rules of Evidence, evidence of post accident repairs
are generally not admissible in a negligence action.)
PROBLEM 8: DEPOSITIONS
FED.R.ClV.P. 30 and 32
1. Paula would like to take an oral deposition of the following persons.
As to each, would a deposition be allowed? What steps must, or
should, the plaintiff take to procure the deposition?
a. Denny.
b. Bob Bystander (an eyewitness).
c. Whichever of Mom's employees is responsible for truck

maintenance.
2. Assume that Paula has taken the deposition of Denny, Bob By-
stander and Flora Fixit (chief mechanic for Mom's.) The case is
now set for trial and Paula is presenting her evidence at trial.
Denny, Bob and Flora are all present at the trial, but none have
testified yet. Paula would like to introduce into evidence portions
of each of their depositions. May Paula introduce portions of the
following depositions at this time?
a. Bob Bystander (who is present and has not yet testified).
b. If your answer was no, what would have to change or be differ-
ent for Paula to have Bob Bystander's deposition admitted?
c. Denny (who is present and has not yet testified).
d. Flora Fixit.
3. Assume that Paula has finished presenting her case and it is now
Mom's Catering's turn. Again, Denny is present, and has not testi-
fied yet. May Mom's Catering have a portion of Denny's deposition
introduced into evidence at this point, or must Mom's wait until
Denny has testified to see if his testimony is consistent with his
deposition?
a. If the portion relates to whether he was driving carefully?
b. If it relates to whether he was delivering food or running a per-
sonal errand at the time of the accident?
PROBLEM 9: MENTAL AND PHYSICAL EXAMS
1. Mom's would like to have Paula examined by their doctor.
a. What steps would Mom's have to take to require Paula to take
such an examination?
b. How and why is this different, both in the standard and the pro-
cedure for obtaining other discovery?
c. Do you think Mom's could make the required showing for a court
ordered examination?
2. Assume the court orders Paula to take a physical examination by
Mom's doctor, who makes the examination and delivers a copy of
the examination report to Mom's.
a. Can Paula obtain a copy of the report? How does Paula go about
this? Does she have to make any special showing of need in or-
der to get the report?
b. Does Paula have to give up anything to get a copy of the report?
c. Is Paula really giving anything up that she has not already given
up by now?
3. Paula would like to have Denny undergo a physical examination.
a. Do you think Paula could make the required showing for a court
ordered examination?
b. If not, what additional facts might enable Paula to obtain the

order?
4. Assume that Paula has some evidence that Flora Fixit is a homici-
dal maniac who may have purposely fixed the truck's brakes so
they would not work. Could Paula obtain an order subjecting Flora
to a mental examination?
PROBLEM 10: WORK PRODUCT
FED.R.ClY.P. 26
Several days after the accident, before Paula brings suit, Mom's
Insurance Company sends Irving Attorney to investigate the cause of
the accident. Attorney visits the scene of the accident, and interviews
Paula (in the hospital) and Bob Bystander (an eyewitness). Attorney
obtains written statements from Paula and Bob, takes a photo of and
prepares a sketch of the accident scene, and drafts a memo to Mom's
containing all facts he has learned about the accident and his theory
and conclusions as to the cause of the accident.
For each of the following discovery requests, indicate whether it
would be:
A. Not covered by Rule 26(b)(3) and the Hickman work-product
doctrine (i.e., normally discoverable upon a showing of
relevance).
B. Protected from discovery by Rule 26(b)(3) unless Paula can
make the special showing required under the Rule. If this is
your choice, be sure to discuss what arguments Paula could
make that she could meet the special showing.
C. Completely protected from Discovery by Rule 26(b)(3).
1. Interrogatories to Mom's requesting various facts learned by Attor-
ney during his investigation. (Le., what was the length of the skid
marks of the catering truck?)
2. A request for copies of the following documents:
a. Attorney's photograph and sketch of the accident scene.
b. Written statements (a signed statement in their own words)
given by:
i. Bob Bystander.
ii. Paula.
c. Attorney's memo containing his theory and conclusion as to the
cause of the accident.
d. What if instead of asking for a copy of the memo, Paula sent an
interrogatory to Mom's asking them to state Attorney's conclu-
sion as to the cause of the accident.
i. Would this technically be covered by 26(b)(3)? Why not?
ii. What would be Mom's argument that it should be barred
anyway?
3. Would your answers to any of the above questions change if the

Insurance Company had hired a private detective, rather than an
attorney, to do the work?
2000J PROBLEM METHOD 281
TABLES:
(TBL.l)
Weekly Preparation Time per Student for Evidence Class
Teaching Method Minutes per Week
Case Method 103
(1998 Class)
Problem Method
(1999 Class) 234
t = .002
(TBL. 2)
Student Evaluations of Evidence Class
Teaching Method Score (on 4.0 Scale)
Case Method 3.29
(1998 Class)
Problem Method 3.67
(1999 Class)
t = .064
(TBL. 3)
Exam Scores for Evidence Class
Teaching Method Score (one 100 point scale)
Case Method 54.9
(1998 Class)
Problem Method 57.5
(1999 Class)
t = .27
(TEL. 4)
Exam Scores for Civil Procedure Class
Teaching Method Score (on 100 point scale)
Problem, No Feedback 62.2
(1997 class)
Problem, with Feedback 58.9
(1998 class)
t = .087

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Teaching First-Year Civil Procedure and Other Introductory Course

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University of Baltimore Law

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Teaching First-year Civil Procedure and Other

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TEACHING FIRST-YEAR CIVIL

PROCEDURE AND OTHER

INTRODUCTORY COURSES BY THE

t Professor of Law, University of Baltimore School of Law. B.A. 1971, Haverford

Electronic copy available at: http://ssrn.com/abstract=1426113

9. See generally James M. Dente, A Century of Case Method: An Apologia, 50

12. Myron Moskovitz explains this quite vividly:

The problem method is more often used in advanced, upper-level

plicated factual situations they are likely to encounter in law practice,

B. My EXPERIENCE WITH THE CASE METHOD

When I first started teaching Civil Procedure, I used the case

Whatever benefits flowed from the case method when studying

understanding of what the important issues were in the case. 31 Dur­

C. TuRNING TO THE PROBLEM METHOD

31. Inability to respond adequately in class, could, of course be caused by failure to

III. HOW I TEACH USING THE PROBLEM METHOD

34. See app. A for a list of the problem sets.

37. See app. B, problem 5: Counterclaims.

The final problem in the counterclaim set poses a factual situation

39. See app. B, problems 7-10.

50. See app. B, problem 7, question 2.

IV. AN EVALUATION OF THIS METHOD

57. See app. B, problem 10.

The empirical research involved comparing my Spring 1998 Evi­

Between my 1998 and 1999 Evidence classes, however, I managed

Using short, focused problems with simple facts allows me much

62. See app. B, problem 6: Amendments.

no negative comments about the problems68 or the problem method

B. DOES IT IMPROVE STUDENT EXAM PERFORMANCE?

Yet to my great surprise, when I compared the performance of my

Perhaps the best example of this phenomenon is a study con­

C. SOME SHORTCOMINGS AND How TO MINIMIZE THEM

The most obvious drawback to the problem method compared to

76. 1966 Annual Meeting, 1966 AsS'N AM. L. SOH. at 209.

V. SOME HELPFUL HINTS

problem method for more advanced courses, I think it would be better

seemed to need more work. The downside to this approach, of course,

80. The Center for Computer-Assisted Legal Education is a not-for-profit corpora­

83. See supra note 70 and accompanying text.

Problem 42: Issue Preclusion

CAPPo B) TEXT OF PROBLEMS 5-10

c. Whichever of Mom's employees is responsible for truck

b. If not, what additional facts might enable Paula to obtain the

3. Would your answers to any of the above questions change if the

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understanding of what the important issues were in the case. 31 Dur

The empirical research involved comparing my Spring 1998 Evi

Perhaps the best example of this phenomenon is a study con

80. The Center for Computer-Assisted Legal Education is a not-for-profit corpora