The Play's the Thing: Learning Civil Procedure by Breaking the Routine
by
Robin Kundis Craig

It's late October or early November. The newness of law school has worn off for most first-year students, but most of them do not yet feel completely comfortable with the case method of learning the law. In addition, in Civil Procedure they have been learning rule after rule delineating who can and who must be part of a lawsuit and what claims and defenses those parties can or must present. Only a few students, however, have begun to move facilely from rule to rule, from issue to issue, with any general sense of how lawsuits come together overall. It's time to break the routine and play a game of hot potato.

Yes, play. As teachers and theorists of education at every level up until college recognize, play is one of the best ways of learning. The first year of law school need not be any different �? indeed, it is perhaps the only time in the future lawyers' careers when play is possible. Properly organized and presented, play allows students to grapple with the complexities of law in a non-threatening and non-stressful environment; to discover loopholes, gaps, contradictions, and other puzzlements in the law itself; and to grapple with that infamous bugaboo of first-year law-exam-taking skills: the relationship of facts to law.

In my approach to teaching Civil Procedure, I schedule a day to review the Federal Rules of Civil Procedure governing joinder of claims and parties right after my students finish interpleader (FRCP 22) and intervention (FRCP 24). Because I cover the Federal Rules of Civil Procedure more or less in order, my students by that point have also covered notice pleading and Rule 8, special pleading rules and Rule 9, Rule 12 motions, counterclaims and cross-claims under Rule 13, third-party practice under Rule 14, amended pleadings under Rule 15, joinder of claims and remedies under Rule 18, mandatory joinder under Rule 19, permissive joinder of parties under Rule 20, and misjoinder and nonjoinder of parties under Rule 21.

Rather than rely on a dry review of the rules or even my own hypotheticals, however, I use half of Review Day to play hot potato. The equipment required is simple: something to serve as the "potato" (a real potato, a small bean bag, a toy, etc.) and a timer. The rules are only slightly more complex:

1. The professor starts the game by constructing a basic scenario, such as a car accident, out of which a simple (one plaintiff, one defendant) lawsuit arises. The game works best if the professor keeps the facts to a minimum.
2. The goal for the class is to "use up" a list of available rules before time is up. My list of rules consists of FRCP 8(a), 8(c), 9(b), 12(a), 12(b), 12(c), 13(a), 13(b), 13(g), 13(h), 14(a), 14(b), 15, 18, 19, 20, 21, 22 (or statutory interpleader), and 24. I give my students 30 to 40 minutes for the exercise and use the timer to prevent second-guessing about when the time is actually "up."
3. The goal for the student holding the hot potato is to come up with something that a party in the lawsuit can do and to pass the hot potato on to another student. In order to get rid of the hot potato, the student must: (1) tell which party (2) is doing what action (3) under which rule, (4) making up appropriate facts as necessary to explain the new claim or the new party. The student cannot get rid of the hot potato until he or she has legitimately expanded the lawsuit.
4. Once the student has appropriately used a Rule (or more than one Rule), the student must walk the hot potato to another student.
5. Other students can volunteer to take the hot potato, if they want, but the decision as to who gets it next is entirely the prior student's.
6. Students can work in groups.
7. If the class uses up all of the listed Rules within the available time, they earn some "prize." Prizes don't have to be elaborate. For example, I have allowed class to end at the same time the game does (generally five to ten minutes early) and made participation in the next class entirely voluntary instead of relying on my normal quasi-Socratic method of calling on students.
8. If the timer goes off before the class finishes the list, the student left holding the hot potato is "it" for the next class -- i.e., the first person to answer questions.
9. During the game, the professor keeps track of how the lawsuit has expanded and what Rules the students have used. An initial list of Rules written on the blackboard, with the professor crossing off Rules as students use them, works well. In addition, the professor needs to ensure that each student has met all aspects of the Rule in question -- including checking for jurisdiction problems.

The benefits of playing build-a-lawsuit hot potato are several. Academically, the game inspires close reading of the Rules and forces students to identify fact patterns that will allow them to apply specific Rules, an exercise that seems to help them apply the law to facts throughout the rest of the course. The game also gives students a sense of how the Rules can work together -- particularly when a student figures out how to use two or three Rules in conjunction, a feat generally cheered by the rest of the class.

Finally, in playing the game, students discover which Rules are "easy" to use up -- because they apply in several situations and/or have tests or requirements that are easy to meet, like permissive counterclaims -- and which are "hard," because they apply to only particular types of claims and/or particular types of parties. In the auto accident scenario, for example, my students can dream up numerous persons to join as parties but struggle to create an indispensable party under FRCP 19.

The hot potato game has benefits beyond teaching details of Civil Procedure, however. First, it provides a welcome change of pace at a point in the semester when students' energy is beginning to wane. Second, the game shows students how to create their own practice problems, a study device that I encourage. Third, because I encourage collaboration, the game allows students to meet their classmates and to experience a sense of community effort toward a common goal. Fourth, when the class "wins," as it usually does, students have shown themselves that they can, in fact, master Civil Procedure.

And finally, perhaps most important, the facts students create inevitably get us all laughing -- something that everyone in law school can use!