Mary Bowman Janet Dickson Seattle University School of Law June 9, 2006

1. Creative Problems, Engaged Students: A Process-Oriented Approach to Designing Legal Writing Problems Mary Bowman Janet Dickson Seattle University School of Law June 9, 2006

2. Introduction • Why are creative assignments helpful? • Keeps students engaged • Keeps students connected to you and to each other • Keeps teachers interested

3. What Do We Mean By Creative? • Factually creative, without necessarily involving novel legal issues. • The facts can be interesting, current, engaging, broadening, thought-provoking, or entertaining • Even when the legal issue is more traditional. • For example, we used a problem that dealt with a wife’s ability to inherit her husband’s property, when he had a sex-change operation several years before he died, and they remained married.

4. Adaptability • Why does this process work for designing creative legal writing problems for different types of programs and different types of assignments? • You bring in the creative idea to fit your needs. • The creative idea is not the central purpose of the assignment.

5. Goal Setting: Putting the Horse Before the Cart Pedagogical Goals: what do you need your problem to accomplish? • Research • Analysis • Organization • Writing

6. Goals for Teaching Research and Analysis • Research – e.g. strategies, statutory versus common law, open versus closed universe, books versus electronic sources, free versus paid sources, primary versus secondary sources. • Analysis – e.g. identifying issues, breaking law into elements, identifying legal rules, describing cases, crafting arguments, predicting the likely outcome.

7. Goals for Teaching Organization and Writing • Organization – options for organizing a discussion section, placing rules versus case descriptions versus arguments versus conclusions, organizing arguments. • Writing – persuasive versus predictive writing (audience and purpose), precision, conciseness, correct mechanics (grammar, punctuation, citation).

8. Planning Ahead to Put the Pieces Together Effectively • Lots of Variation Among Programs • Within a Program, Spiral Curriculum • Importance of Advanced Planning • Fit a fun problem into the best slot during the year • Create an effective package of problems throughout the year • Accomplish other goals (e.g. use both civil and criminal problems, adapt assignments to particular class’s interests)

9. Excellent Sources on Goal Setting • Grace Tonner & Diana Pratt, Selecting and Designing Effective Legal Writing Problems, 3 Legal Writing: J. Legal Writing Inst. 163 (1997). • Helene S. Shapo & Mary S. Lawrence, Designing the First Writing Assignment, 5 Perspectives: Teaching Legal Research and Writing 94 (1997). • Lorraine Bannai et. al., Sailing Through Designing Memo Assignments, 5 Legal Writing: J. Legal Writing Inst. 193 (1999).

10. Steps to the Process • Trigger Idea • Initial Research • Define the Issue • Create the Fact Pattern • Present the Fact Pattern

11. Initial Triggers(The Seed) • Something that • surprises or shocks you • makes you angry • makes you compassionate • provokes and really stirs you • makes you laugh out loud

12. Examples • Often bothered by people approaching to sign initiative petitions • T.V. talk show about a heterosexual woman who remained married to a man who had a sex change operation • Medical marijuana legal in some states, but not in U.S. generally • Spoke with a friend about the sale of her business, triggered conflict of interest issues • The “new” idea of botox parties • Article about how businesses can target their good internet customers and charge them more

13. Sources for Trigger Ideas • Reading the paper • Listening to the news • Overhearing a conversation • Watching Oprah • Reading a current affairs book

14. Moving from the Trigger Idea to Other Options • Why not stick with the trigger idea? • Brainstorm other legal issues that could be based off the trigger idea.

15. Brainstorming ExamplesTrigger Idea • Latinos fired for leaving work early to attend immigration rally

16. Excerpt from Newspaper Article • From an article in the Seattle Times by Sanjay Bhatt A Monroe-based home-painting contractor fired more than a quarter of its employees — all of them Latino — Tuesday morning, a day after the painters left work two hours early to attend Monday's immigration rally in downtown Seattle. The company, Laitala Enterprises, and the fired workers agree on this much: That the workers told their foreman Monday morning of their desire to attend the rally, that they left early, and that their departure didn't delay the schedule of a painting job in a Fife subdivision. • The article then talked about the workers meeting at their union headquarters in an effort to force the company to rehire them.

17. Another Brainstorming Example • A recent headline: “Now in foreground: jurors’ backgrounds” • Excerpt from the article: “Lack of truthfulness on jury questionnaires is a growing problem that is prompting calls for criminal background checks of jurors.” • Monday, May 8, 2006 Tresa Baldas/Staff reporter

18. Brainstorming Activity • Break up into groups of four to five people for the following activity: • Introduce yourselves to one another. • Spend 5 minutes brainstorming ideas within your group for memo problems based on the following trigger idea. • Assign one member of the group to report back to the group.

19. Excerpt from “Lawyers play their hand with poker law”By Tresa Baldas, Staff ReporterNational Law Journal, January 2, 2006 TEXAS HOLD ‘EM poker is keeping lawyers busy these days, but not at the tables. The wildly popular card game has created a buzz about the legality of using poker tournaments to raise money for charitable causes. Over the last year, organizations nationwide, from schools to churches to plain old poker-junkie groups, have turned to lawyers for help in battling what they deem as rigid charity poker laws. While poker tournaments have proven to be huge money makers for many charitable causes, not all states allow poker fundraisers, and authorities are increasingly cracking down on groups that try to host them. In California, for example, a business association recently was forced to cancel a poker fundraiser for a local library after state authorities sent notice that the event was illegal. In Texas, a poker tournament for breast cancer was canceled due to legal issues. And in Oregon, a mother trying to raise money for her kids’ school through charity poker ran into similar opposition.

20. Preliminary Research • Use to Sort through Possible Ideas • Research Considerations • availability of secondary sources (useful? too useful?) • number of primary authorities (“Goldilocks” approach) • complexity of primary authorities • likely wrong turns • jurisdiction

21. Creating the Fact Pattern • Define the Issue For the Students • Clearly define the issue to be researched and analyzed. • Consider including language to head off wrong turns. • Then focus on what facts you need to include in your fact pattern.

22. Creating the Fact Pattern • Generating the Fact Pattern • Start with ideas about facts from trigger idea. • Refine facts based on results of research, with arguments in mind. • Try to make the fact pattern as realistic as possible.

23. Social Justice/Diversity Setting • Why this can be a good idea • How to do it • Choice of issues • Names • Contextual facts • Dangers to consider • Talking to students about issues raised

24. Some Dangers to Avoid in Using this Creative Process • Don't make the problem too analytically difficult (e.g. not enough law out there, the law that is out there is too tough for the students). • Don't make the research too hard. • Don’t make the problem too broad or too narrow. • Don't put novelty before pedagogical goals. • But don't make the setting too boring either. • Don't be too rigid in your expectations (adaptability is key).

25. Presenting the Facts Some ways to go beyond presenting the facts in the form of basic interview notes. • create a case file • use transcripts • consider a video presentation

26. Presenting FactsUsing Case Files (Masekala Problem) INTEROFFICE MEMORANDUM TO: LEGAL INTERN FROM: SUPERVISING ATTORNEY DATE: AUGUST 22, 2005 RE: MAYA MASEKALA, FILE NO. 05-118 POSSIBLE CONFLICT OF INTEREST ISSUE Maya Masekala, has taught Kindermusik classes in West Seattle since August of 2000. During this period, she has worked for Carla Fontana, who owns the Laugh and Play Kindermusik business for which Maya teaches. Carla recently approached Maya about whether she would like to buy Laugh and Play Kindermusik. Maya is very interested in the opportunity to buy the business, but she is concerned about some of the legal and financial matters regarding Carla’s operation of the business. In particular, she is concerned about some of the employment law issues. Maya would like me to review these issues, helping her with the due diligence and the purchase and sale agreement in connection with this transaction. The current owner of the business, Carla Fontana, would be the adverse party in this matter.

27. Information from Client Interview(Masekala Problem) INTEROFFICE MEMORANDUM TO: FILE FROM: SENIOR PARTNER DATE: JULY 8, 2002 RE: CARLA FONTANA, FILE NO. 0271-96 CLIENT INTERVIEW REGARDING BREACH OF NON- COMPETITION AGREEMENT Notes to file re. interview with Carla Fontana, owner of Laugh and Play Kindermusik (LPK), re. breach of independent contractor agreement. • CF owns LPK. Provides music and movement classes for infants – 7 yr. old kids. Emphasizes child development principles. Standardized curriculum, from Kindermusik International. LPK provides materials teachers need to teach the curriculum (instruments, books, scarves, toys, arts & craft supplies, etc.). • CF teaches LPK classes 3 mornings a week in Ballard. 4 other teachers work for LPK, teaching classes in a total 7 other locations throughout Seattle. CF negotiates leases for the classes and hires teachers to staff the locations. CF also does the rest of the administrative side of the business.

28. Supplying Law That Is Related But Not At Issue (Masekala Problem) INTEROFFICE MEMORANDUM TO: LEGAL INTERN FROM: SUPERVISING ATTORNEY DATE: AUGUST 22, 2005 RE: MAYA MASEKALA, FILE NO. 05-118 BASIC LAW ON COVENANTS NOT TO COMPETE AND THE DISTINCTION BETWEEN INDEPENDENT CONTRACTORS AND EMPLOYEES, FOR PURPOSES OF EVALUATING THE POTENTIAL CONFLICT OF INTEREST Please use the information below to help you evaluate the conflict of interest issue, and do not do further research on these topics. Enforceability of Non-Competition Agreements Washington courts will enforce non-competition agreements, also called covenants not to compete, when the agreements are reasonable. Perry v. Moran, 109 Wn.2d 691, 698, 748 P.2d 224 (1987). “Whether a covenant is reasonable involves a consideration of three factors: (1) whether restraint is necessary for the protection of the business or goodwill of the employer, (2) whether it imposes upon the employee any greater restraint than is reasonably necessary to secure the employer's business or goodwill, and (3) whether the degree of injury to the public is such loss of the service and skill of the employee as to warrant nonenforcement of the covenant.” Id.

29. Providing Legal Documents (Masekala Problem) INDEPENDENT CONTRACTOR AGREEMENT This INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) is made as of August 1, 2000, by and between Laugh and Play Kindermusik (“Laugh and Play”), a Washington sole proprietorship with its principal place of business in Seattle, Washington, and Maya Masekala, an individual, whose address is 4516 40th Avenue Southwest, Seattle, Washington, 98116. In consideration of the promises made by each to the other, Laugh and Play and Ms. Masekala agree as follows: AGREEMENT A. Responsibilities. Ms. Masekala shall have the following responsibilities: (i) teaching approved Kindermusik classes to groups of between five and fifteen students at a time; (ii) collecting tuition payments from each parent once a semester; (iii) maintaining your Kindermusik license through Kindermusik International; and (iv) carrying out other duties incidental and/or relating to the listed duties above. Ms. Masekala will determine the number of classes she wishes to teach each semester, as well as the method, details, and means of performing the above-described services.

30. Presenting Facts Using Transcripts THE COURT: When the fire occurred, there was some media coverage, including both television and newspapers. Does anyone recall reading about the fire in the newspaper or seeing anything about it on television? OK. I see a few hands. Juror No. 26, Mr Bickel. Juror No. 15, Mr. Jackson. Let’s start with Mr. Bickel. JUROR 26: Yeah, I think I remember reading about it in the paper when it happened, but I don’t really remember any of the details. THE COURT: Did you read about how it happened or who was accused? JUROR 26: I might have, but like I said, I don’t really remember any of the details. THE COURT: Do you think you can judge the case solely on the evidence that’s presented here in court and not on what you read? JUROR 26: Yeah, I’m sure I can because I really don’t remember much about what I read.

31. THE COURT: Thank you, Mr. Bickel. Next, Juror 15, Mr. Jackson. JUROR 15: Well, I didn’t actually read about the fire in the paper, but I heard about it from some friends at the mosque that my wife and I attend. THE COURT: What did you hear? JUROR 15: First I heard that the police though it might be a hate crime, but then I heard that the owner was accused of setting the fire. THE COURT: Do you know Mr. Akram or know anything else about him? JUROR 15: No, I don’t. THE COURT: Do you think that what you heard will influence your ability to be fair and impartial in this case? JUROR 15: No, I don’t.

32. Presenting the FactsVideo Presentation (Internet Jurisdiction)

33. Presenting the FactsVideo Presentation (Gender Problem)

34. Conclusion • Start with clear pedagogical goals. • Look for trigger ideas. • Brainstorm other legal issues that can flow from a trigger idea. • Clearly identify the legal question the students should research. • Think about interesting ways to present the facts.