By Marleigh Davis, CFCC Student Fellow (2016-2017)
When I reflect on what I learned in my first year of law school, what comes to mind is reading and discussing judicial opinions in cases that already had been litigated and decided. What is not often discussed in class is what happens prior to litigation.
I interned this past summer in the Protection Order Advocacy and Representation Project (POARP) division of the Women’s Law Center of Maryland. Before this internship, I had not given much thought to the concept of “preventive law.” As I began to observe a Women’s Law Center attorney interact with her clients, I quickly realized that there is much more to a law career than litigation. The attorney carefully prepared each client for a hearing in the event that the case went before a judge. During the preparation discussion, the attorney would always ask her client to describe her best case scenario, or what exactly she hoped to accomplish with a protective order, particularly since the order often included temporary custody arrangements, Emergency Family Maintenance payments, and much more. After a client explained exactly what she wanted, the attorney would ask her what was negotiable. Clients would respond, for example, that the best case scenario would be for the father to have visitation one day on the weekend and one day during the week, but that the client would be willing to negotiate if the father wanted to keep the child for the entire weekend every other week.
On the morning of the Final Protective Order hearing, the attorney would meet with the respondent (or his attorney if he had representation) and explain her client’s wishes regarding the protective order. Sometimes they would agree and a hearing would be avoided. At other times, the respondent would not agree, in which case the attorney would consult with her client to come up with a second offer that was consistent with her client’s “bottom line” regarding that protective order. The attorney would remind the parties that it was better for them to agree than to leave the determination of these critical and very real personal issues to a judge who was unfamiliar with them and their circumstances. More often than not, I saw the parties come to an agreement. From what I observed, the discussion and resolution of the issues between the parties themselves resulted in parents who were happier with the outcomes than those who went through a hearing to resolve their issues.
After our CFCC Student Fellows class this week focusing on preventive law, I began to wonder why we do not talk more during law school about what occurs prior to a trial or hearing? Do you think that such discussions would better prepare law students for the practice of law?
I agree that preventive law should become a theme early and throughout law school. From what I can think of, CFCC and family law are the first classes that it becomes a topic even, as it is left out of the first year classes. I am wondering if the steps of what occurs prior to trial are something we learn later in our law school life, as you pointed out that they are essential to the practice of law. Regardless, I think there should be some discussion of preventive law in most classes, even if it is just one discussion about the role of preventive law within a specific area.
I think this raises the often-discussed issue that law schools are not sufficiently preparing law students to deal with real people with real problems. In law school we read a lot of cases, but we don’t read about everything that happened before the parties came to court. There also seems to be a focus in law school, to prepare law students to be litigators. When the focus is on “winning” a trial, we are likely to forget who is really the winner or loser at the end of the day (our client).
I think this is why it is important to take classes such as a clinic, CFCC, mediation skills, INC, etc. These classes remind us that our job as a lawyer is to understand how one legal problem can be intertwined with a variety of other problems that people face everyday, and apply preventative law to help our clients resolve their problems permanently.
I believe the discussion of preventive law is absolutely crucial to a well rounded legal education. Not only will the topic better prepare law school students for the practice of law, but preventive law training will overall contribute to the education of a new generation of attorneys who are more apt to care about the outcome of their client’s lives. Too much of the time it may be that the stigma/emphasis of law school is focused on litigation, instead of more broad based concepts that include ideas of preventive law that hold therapeutic grounding.