The Paraclinical Approach

The Para-Clinical or Paraclinical Approach
by Stephen R. Marsh

Introduction

Many classroom approaches to teaching law fail by not providing any "practical" or applied knowledge. Many clinical programs are unable to manage and direct the educational experience with sufficient precision. The Para-Clinical or Paraclinical Approach attempts to address those issues.

Premises

Some subjects, such as tax, allow for a logical, problem set based, educational approach. A student who takes a class with that approach gains a series of tools to handle the various related problems that the class covers. Traditional instruction has instructed students, and (in theory) provided them with tools by either Socratic questioning and case studies or by clinical experience. Both approaches have had substantial criticism and substantial praise.

There is an approach that is entirely classroom based -- one that offers the advantages of structured, consistent learning. It also supports clinical style feedback and tangible learning. It is called the para-clinical (or paraclinical) approach. The easiest way to explain it is by a functional example.

In Application -- A Family Law Class

Family law issues lend themselves to discrete tasks, forms and tools. Many jurisdictions have almost mechanized the procedures, pleadings and orders involved in family law. Much like criminal law⁽¹⁾ or estate matters,⁽²⁾ family law lends itself to being categorized into discrete tasks and to a paraclinical approach.

The following outlines an approach to a paraclinical family law class.

• WEEK ONE -- The Style of a Case // Class Overview.
  • This week has two major lessons.  First, it introduces students to the way that court pleadings actually look. Many students graduate from law school without any idea of what a pleading (or a local court room) actually looks like and this familiarizes the students with their jurisdiction's pleading form.
  • Second, the entire content of the class is set out so that the students know what they will be learning.  This is a long, substantive introduction to the material.
  • The writing assignment is a "warm-up" -- the students draft three case styles.  This is an easy warm-up.
    .
• WEEK TWO -- Parties and Jurisdiction (including standing).
  • This week begins real, substantive law.  The students learn who the parties are in a family law case, who can bring a suit and who can not.  They also learn who can intervene.
  • This week also teaches which court has jurisdiction  for what purposes and prefaces the concepts involved in "home state" and other issues.
  • The writing assignment is again very simple.  The students draft the parties and jurisdiction part of a pleading.  Students need to warm up to the idea of regular weekly writing assignments.
    .
• WEEK THREE -- Service of Process.
  • This week covers when service must be made in person, what to do when service is avoided and service by publication and posting in a family law case.
  • The writing assignment includes drafting normal service and citation, a request for alternative service, and a Motion and Order for the appointment of an ad litem.  While this is a "real" (not nominal) amount of writing, it provides the student with exposure to the concepts taught, useful practice forms and can be accomplished in less than an hour.
    .
• WEEK FOUR -- No Fault and Fault Grounds for Divorce (including a pragmatic aside).
  • The class covers pleading and proving the reasons for a divorce (fault and no-fault).
  • This week also goes over what you "can" include verses what you "should" include.
  • Writing assignment includes presenting the students with three hypotheticals and their drafting the grounds for each of the hypotheticals.
    .
• WEEK FIVE -- Ex Parte Protective Orders.
  • In this week the students learn the limits and the uses of the law.
  • It also introduces the students to forms, current issues, and real problems clients will have including issues of detail, proof and variations from county to county and judge to judge.
  • The writing assignment is a hypothetical and drafting an application together with the ex parte order and setting for hearing issues.
    .
• WEEK SIX -- Ex Parte Injunctive Relief.
  • This week brings the students down to routine boilerplate in the law and includes the "usual" prohibitions to keep assets in place.
  • This week should include pragmatic notes on how to protect clients (vs hoping that the other party will obey the law).
  • The assignment is drafting the standard Motion for Ex Parte Relief (twice, once as a part of an original petition and once as a free standing motion).
    .
• WEEK SEVEN -- Protective Orders and Temporary Orders. (excluding support)
  • The students have hit the basic issues of drafting.  Now it is time for the practice hearing.
  • Issues of proof (the difference between what the client "knows" and what the admissable evidence) are critical here as is what to expect out of a hearing.
  • This week's assignment includes a mock hearing and the drafting of the Orders (two hypotheticals, two orders). (If your jurisdiction relies on the attorneys to draft and submit orders).
    .
• WEEK EIGHT -- Standard Discovery.
  • This week reviews the standard discovery that issues in normal divorces and the limits of what parties can expect.
  • The writing assignment is a hypothetical and the drafting of standard discovery.
    .
• WEEK NINE -- Interim Support (individual and child support).
  • This week reviews the standards and issues that go into seeking support for the spouse and support for the children.
  • This week's assignment is a hypothetical, drafting the initial seeking of support and a drafting a proposed order.
    .
• WEEK TEN -- Custody Issues.
  • This is the beginning of "real" legal issues combined with solid practical issues.  
  • The students cover what standard visitation is, who can generally expect to have custody, and how those issues are decided.
  • ADR is briefly discussed.
  • Obviously, this topic could be an entire course in itself.  The class covers only the standard pleading elements and the basics.
    .
• WEEK ELEVEN -- Changing Custody.
  • This week covers the standards for changing custody:  by choice of the child and without the choice of the child.
  • Again, the students are given two hypotheticals and are expected to draft two sets of pleadings (in one, the fourteen year old child desires to change custodial parent, in the other the custodial parent has had a Child Protective Service Investigation -- but no conviction or prosecution).
    .
• WEEK TWELVE -- Property Division.
  • The basic rules of property division are addressed.
  • ADR is briefly discussed.
  • The writing assignment is an agreed property division.
    .
• WEEK THIRTEEN -- Advanced Property Division.
  • This week introduces tracing, separate property, and all the various standard complications.
  • The students draft two sets of pleadings.  The first seeks reimbursement.  The second is a set of answers to hypothetical discovery explaining how the party would characterize various items.
    .
• WEEK FOURTEEN -- The Decree of Divorce (all the standard boilerplate). Practice a standard prove-up.
  • In this week the class reviews a standard decree of divorce.
  • After reviewing the standard decree, the class exercise involves a hypothetical client and proving up the elements of the divorce that would fit a hypothetical decree.  Each student goes through a prove-up.
    .
• WEEK FIFTEEN -- Other Issues (marital torts, etc.).
  • This class is a chance to touch base on all the advanced family law issues (for the advanced family law class).
  • This week is an academic review and consideration and a break from the normal routine.  Students are being exposed to elements they will need to be aware of in real practice, even if they will not expect to encounter those elements.
    .
• WEEK SIXTEEN -- Review
  • This week is a review.
  • This week ends with an open book final where the students are presented with a hypothetical and expected to draft the appropriate documents.

Weekly Outline (for the "standard" weeks):

Day One (a):  Reading Assignment then Lecture and writing assignment.

Day One (b):  Student study group review of written drafts of members (3-5 in each group).

Day Two (a):  Follow-up lecture with template example for writing assignment distributed and discussed.  Draft to final and turned in.

Day Two (b):  Study groups grade each other's final drafts.  Students rewrite and submit for grading to Professor (pass/fail).  By this time the students will have done a draft, had a template, had their draft finalized, had it graded by another study group and then turned in a revised draft.  99% should pass without significant issues.  Family law, with the standardized pleadings and forms, lends itself very well to this approach.

Day Three (a):  Lecture.  Advanced discussion on each topic.

Day Three (b):  Office visits prn.

By the end of the semester the student will have drafted each pleading that will arise in a divorce and will have reviewed and discussed it.  The final will be the proper selection of the right pleadings for complex situations and identifying the right answer to family law issues.  The student will also be better prepared for a "real" clinic -- putting the training into practice with real clients.

Conclusion

This approach does not replace a "law school" approach to family law -- in fact, it spends a week as an advertisement for an advanced family law class that covers all of the academic facets and issues.

This approach does not replace clinical experience -- rather this approach prepares a student to be better prepared for a family law clinical with a collection of forms, procedures and complete understanding of context.

On the other hand, this approach also provides a student with practical skills, understandings, forms and approaches to a real and substantive body of the law and legal practice.  It may be applied to personal injury law practice, workers compensation, real estate, probate, securities, bankruptcy, and a number of other areas, depending on the desire and focus of the legal program in which the students are enrolled.

I hope you find it useful in teaching your students and in helping them learn.

2. The success of numerous computerized estate planning and probate packages reflects the precise and technical nature of some of these elements.

©1997-1998 Stephen R. Marsh 
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