Law Blog Law Professor of the Day: UCLA’s Pavel Wonsowicz

[WSJ Law Blog]

Midway through my first semester of law school, my civil procedure professor threw us a midterm exam. He told us, if memory serves, that he was doing us a favor. He said it wouldn’t count much toward our final grade for the class, and that it would help get us used to law school exams.

So I prepared like crazy. And when I opened the exam, I felt like I’d been blindsided by a truck. What was this, I remember thinking? It was unlike any other exam we’d ever seen. It wasn’t asking us to discuss the pros and cons of the Upjohn ruling or to talk about how Anderson v. Liberty Lobby modified the Celotex ruling on summary judgment, either of which we could have done. No, this professor was asking us to apply the concepts we’d learned while reading our assigned material, and apply it to some completely convoluted hypothetical starring Polly Plaintiff and Danny Defendant.

My grade on the exam was low. Like bottom-of-the-curve low. And while I walked away, yes, feeling thankful that our professor had given me a taste of what was to come, I felt like a complete doofus. Of course. This was law school. They wanted us, on the exams, to play lawyer, to apply law to facts. It made sense. Why the hell had I been so surprised?

At the same time, I still felt mildly cheated. Why hadn’t anyone told me this is what a law-school exam looked like? And, more importantly, why weren’t we being taught to think like this? There was no section in the back of our casebook that trained us to apply rules to facts. And the Socratic method, scary as it could be, only taught you how to regurgitate a case’s facts and locate the holding. Why the disconnect?

I’d largely forgotten this short-lived but particularly painful little part of my past until I stumbled upon a recent article in the Chronicle of Higher Education. The article, nominally focused on a recent American Association of Law School conference on ways law schools are helping students find work in this brutal market, mentioned some remarks made by of UCLA law professor Pavel Wonsowicz. Writes the Chronicle’s Katherine Mangan:

After lecturing about the so-called confrontation clause, [Wonsowicz] engaged the students in some light Socratic dialogue. . . .

[Said Wonsowicz]: ‘What did I hope to see? Eager, even enthralled faces. What did I see? One hundred students on the Internet trying to figure out who Tiger Woods is sleeping with.’

Mr. Wonsowicz . . . [then] tried another approach on the audience, playing a 911 tape after dividing the “class” into prosecutors and defense lawyers and asking them to determine when the domestic-violence emergency that is being called in ends.

By limiting his lecture to 20 minutes at the beginning of the class, engaging as many of the students’ senses as possible, and making sure they were actively involved in dissecting the complex case, he kept their attention and improved the chances that they would retain the material, he concluded.

While it was hard to tell what Wonsowicz was driving at just from the Chronicle blurb, it piqued my interest. Anything that moved beyond lectures and the Socratic method would certainly be a pedagogical improvement over the way law students have been taught forever — and maybe help law students prepare not only for their lives as lawyers, but their exams too.

So I got Wonsowicz on the phone. He told me that, yes, this was part of the design of the exercise — the types of which he does from time to time in class. “I tell my students at the outset of a course that there’s an unfairness going on in the way classes have been traditionally handled,” he said. “It’s this: We teach you on the case method and test on the problem method.”

Exactly!

Wonsowicz explained that the incident came up while reading Justice Scalia’s opinion in a 2006 confrontation clause case called Davis v. Washington. The confrontation clause, explained Wonsowicz, typically does not apply to situations in which a potential witness makes incriminating comments about a defendant during an emergency-type situation, in which it’s clear the statements were not made with the primary purpose of incriminating a defendant. The issue in Davis v. Washington: whether statements made by a domestic-abuse victim during a 911 call could be used by the prosecution against the alleged attacker when the attacker did not want to testify (and therefore wouldn’t give the defendant the opportunity to “confront” her in open court). In order to make that determination, the justices had to wrestle with whether during the call, the victim was truly facing an emergency.

In his treatment of the case, Wonsowicz asked the students to play prosecutors and defense attorneys. In the course of the exercise, the students were forced to think up other situations that might or might not constitute an emergency. In so doing, they were applying the rule to a separate set of facts, much like they’re asked to do during an exam.

Oh, had I had dear Pavel to teach me!

Says Wonsowicz: “The students fared wonderfully. Suddenly the exercise went from highlighting a holding to really digging into the ruling and attempting to apply it in other situations. It was a prime example in which the applicability of the Socratic method ends. Everyone could read Scalia’s holding, but it wasn’t until we did the exercise that the students could apply it.

Wonsowicz says that for the exam, he drew heavily from the Davis case. “The students really rose to the occasion,” he says. “The answers were uniformly good. ”

Wonsowicz says that such methodologies aren’t appropriate for everything. But at the same time, he says, law professors can do more than merely lecture. “You can role play. You can divide up into small groups, you can think outside of the box.”

“Even if it falls flat, you’re doing inventive things and students are engaged. It’s not just “Oh, Jane got called on and now I can tune out and go back to playing solitaire.”