Electives: Litigation
III. Elective Curriculum by Practice Area
A. Litigation
Litigation is the process of resolving legal disputes in various
contexts and forums. Parties to a dispute formally and informally
gather information and usually attempt to resolve the dispute through
informal negotiation or structured mediation. When settlement
efforts fail, the dispute is resolved in a formal setting with a
decision maker deciding the facts and applying the law.
Litigation takes place in civil and criminal matters; the ultimate
forum for resolution varies, and includes trials before judges, juries,
administrative panels and arbitrators.
Students who wish to become litigators should understand that the vast
majority of litigated matters never reach the trial stage. The
facts of the dispute are developed through the process of discovery,
the law applicable to the case is considered, and the parties usually
negotiate a settlement or plea agreement. Lawyers who
consistently excel in the litigation process tend to have the following
skills and talents:
1. They are able to analyze a set of facts and
determine the controversy. Litigators understand how to evaluate
a case when they first become involved in order to figure out what will
be needed to prevail. They can evaluate their clients, assess the
applicable law, and develop and implement a strategic plan on how to
end up in the best possible situation.
2. They can capably interview clients and develop
trust and rapport. Litigators learn how to listen, how to gently
extract information, and how to develop a mutual sense of loyalty and
respect. They are able to counsel clients effectively. They
learn to help clients identify realistic goals and can effectively
communicate advice clients do not want to hear.
3. They are able to skillfully interview witnesses in
both informal and formal settings. Litigators know when and how
to have informal conversations, how to take witness statements, and how
to take depositions. They understand the evidentiary implications
of the choices they make.
4. They have strong writing skills. Litigators
are advocates who learn how to write clearly and persuasively.
Litigators write letters, pleadings, briefs, etc. If their
writing skills are not strong, they substantially decrease the chance
of a positive outcome for their clients.
5. They have a firm grasp of the rules that control
the litigation process. Litigators are governed by a variety of
procedural rules, including the rules of evidence, criminal procedure,
and civil procedure. There are jurisdictional statutes,
procedural statutes, and a host of local rules for various
courts. The rules must be mastered in order to maximize control
over the litigation process.
6. They must understand the principles and techniques
of negotiation. Skillful negotiation is critical to a successful
practice.
7. They must be able to competently try a case.
This skill is necessary for two reasons. First, in order to
maximize the opportunity for a favorable settlement, the opposition
must know that the litigator can and will try the case, if
necessary. Secondly, even when the litigator does everything
correctly in the pretrial/negotiation phase, some cases do not settle.
In order to develop the skills described above, there are certain
courses all students interested in litigation should take (additional
courses are recommended). Where noted, certain courses are
essential or recommended for particular areas of litigation
concentration.
Essential Courses
* Evidence: F, S
* Trial Advocacy: F, S
* Business Associations (essential for civil and
white–collar crime practitioners): F, S
* Also See "Criminal Justice" for Essential courses
for criminal litigation
Recommended Courses
* Federal Courts (For those involved in civil rights
or constitutional litigation): S
* Remedies: F, S
* Litigation is skills–based. However, a good
grounding in one or more substantive fields is also important.
The following recommendations assume you will add courses from your
substantive field to your plan.
Pretrial Skills (one or more):
* Pretrial Practice (Civil): F
* Negotiation: S
* Consumer and Commercial Law Clinic: F, S,
Summer
* Criminal Practice Clinic: F, S, Summer
* Litigation Externship F, S
Trial Skills (one or more):
* Advanced Trial Advocacy: S
* Expert Witnesses and Scientific Evidence: F
* Criminal Practice Clinic or Consumer and Commercial
Law Clinic: F, S, Summer
* Court Externship: F, S
* IP Litigation (for IP litigators): S
Writing Skills (one or more):
* Advanced Appellate Advocacy: F
* Judicial Opinion Drafting: S
* Appellate Defender Clinic: F, S, Summer
* Fundamentals of Law Practice (can only be taken in
first year): S
* Pretrial Practice: F
Also see "Qualifying Writing Courses"
Client–Centered Skills (one or more):
* Live–Client Clinic: F, S, Summer
* Client–Contact Externship: F, S
* Dispute Resolution: F
* Law Office Management: S
Related Courses
* Any of the recommended skills courses above, plus:
* Employment Law (relevant to civil, business or
civil rights litigation): S
* Conflicts (commercial practice) (currently not
offered)
* Criminal Procedure II (criminal practice) (Spring –
odd years)
* Ethics, Morals and Law (any litigation
practice): S
* Civil Rights Litigation: F
Practical Skills Courses
(All Recommended Courses are skills courses.)
Related Upper–Level Writing Courses
* Advanced Appellate Advocacy: F
* Appellate Defender Clinic: F, S, Summer
* Ethics, Morals and the Law: S
* Judicial Opinion Drafting: S
* Pretrial Practice: F
