Q & A: The Problem with Palsgraf

An interview with Janeen Kerper, professor of law at California Western School of law, and academic director of the school's McGill Center for Creative Problem Solving. Ms. Kerper was interviewed by Steven Keeva.

Summary of facts in Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 162 N.E. 99 (1928): Holding a ticket to Rockaway Beach on the Long Island Railroad, Helen Palsgraf was waiting on the platform at the East New York station when a train arrived. A late arriving passenger, running for the train, dropped a package that fell to the tracks beneath the train. The package contained fireworks and exploded, causing a scale on the platform to fall, injuring Mrs. Palsgraf. The issue: Were the plaintiff's injuries the proximate result of the defendant's negligence?

Q: Why do we need a new model for lawyering? Does it have something to do with your contention that, "Before there are cases, there are human beings with problems?"

Like medical doctors, lawyers have become immersed in their own narrow specializations. Doctors sometimes forget that behind that intriguing gall bladder problem there is a whole human being with a lifestyle, family problems and work stresses that contribute to their disease. Gall bladder surgery may relieve the symptoms, but it won't heal the patient. In the same way, we lawyers tend to forget that our clients don't just have legal problems, they have life problems. Lawyers tend to look backward in time, and reflexively seek damages for past legal wrongs. If lawyers concentrated instead on helping their clients design better futures, I believe they would provide better service to their clients and find their practices more gratifying.

Q: What is it about the Palsgraf case that made you think it would be a useful way to explore two very different modes of lawyering?

The Palsgraf case is the most famous case in the law of negligence. Almost no one graduates from law school without reading it. When I first began teaching Palsgraf, I was struck by the fact that the appellate decision contains only the barest description of the facts. After reading the case, you do not know how old Mrs. Palsgraf was, what her hopes and dreams were, whether she had any family, nor even the precise nature of her injury. The factual record of the appellate decision is completely stripped of humanity.

But practicing lawyers do not deal with clients who are stripped of humanity. On the contrary, they must address their client's problems in contexts that are fraught with human emotion, complex relationships, and conflicting values. So I thought my students would benefit by going behind the scenes of the appellate decision, and learning about the real Mrs. Palsgraf--not as she appeared to the appellate court judges, but as she appeared in her lawyer's office.

Q: Law students everywhere are well aware of how the case method addresses Mrs. Palsgraf's dilemma. Where might a problem-solving approach begin with the case?

I think true creative problem solving begins with humility and open-mindedness--a realization that no single person possesses all the answers. It also begins with deep respect for the client who is an expert on his or her own life problems. The lawyer must listen, listen patiently and listen again to learn about what the client identifies as the problem, and about their lives, their relationships, their stresses, their hopes, their dreams, their values.

Creative problem solving also begins with the knowledge that people frequently define their problems too narrowly--often in terms of an anticipated solution. If Mrs. Palsgraf came into your office, she would probably tell you at the outset that her problem is whether or not she should sue the Long Island Railway. So the lawyer might say to Mrs. Palsgraf: "Before we address that question, I'd like to learn a lot more about you so that I can be sure we design a plan of action that will be tailor-made to meet your specific needs. Why don't you tell me more about yourself? Where do you live? What do you do? What are your greatest concerns? How do you want your life to change? What kind of future do you want for yourself and your family?" and so on. Once a lawyer understands the client's underlying needs, goals and objectives, it becomes much easier to reframe their initial question in a way that permits a broad array of possible solutions.

How does the lawyer help the client find a solution to the underlying problem?

Both in framing the problem and in framing a solution system, the lawyer as creative problem solver will reach out to a variety of sources. Mrs. Palsgraf's daughters might be actively consulted and involved in the process. Although not particularly legally relevant, Mrs. Palsgraf's behavior in trying to protect her daughters at the scene of the accident clearly shows that her major underlying concern is for the welfare of her daughters. Interdisciplinary approaches to her problem will be actively considered--welfare agencies, social service agencies, community colleges, occupational centers, psychologists and psychiatrists all become possible participants in an appropriate solution system for Mrs. Palsgraf and her family. Litigation is only one of the avenues considered, and the lawyer assumes both the role and the responsibility of facilitating other solutions. This is the multi-door law office.

Q: For generations the case method has been the preferred way to teach students to "think like a lawyer." What does the problem solving method teach, how to think like something other than a lawyer, and if so, what?

I don't believe that appellate cases teach law students "how to think like a lawyer." Appellate cases show us how appellate judges think. Of course, it's terribly important for lawyers to understand how judges think. But that is only the bare beginning of "thinking like a lawyer." The skills required to practice law are much more extensive.

The 21st Century lawyer can't stop with just learning the law. He or she needs to be skilled at listening, investigation, planning, risk-analysis, negotiation, management, collaboration, and team building. He or she needs to have some knowledge of economics, statistics, game theory, cognitive and social psychology. In addition a lawyer needs to have certain personal characteristics of humility, open-mindedness, curiosity, optimism, and a capacity for joy and surprise.

Porto luxury hotelsQ: What's wrong with the case method as the primary mode of legal education? Why is it antithetical to the resolution of most clients' problems?

I find it troubling that about 70 percent of all law school classes are taught using the appellate case method. It's too limited. It teaches lawyers to bi-polarize every issue: plaintiff v. defendant, petitioner v. respondent, etc. As case law continues its dominance in legal education, it becomes the ethos by which we are indoctrinated to understand law. The result is that the lawsuit remains our dispute resolution mechanism of choice. The bipolarity of the legal action sustains itself. The "v " is everywhere. It should be no surprise that our nation's lawyers continue to launch lawsuits at a proliferating rate. Our lawyers are over-trained to be advocates for one side; they are not adequately trained to be facilitators of other kinds of solutions.

Q: If a law school adds creative problem-solving skills to its curriculum, won't it also have to teach subsidiary skills that have not traditionally been part of the curriculum (here I'm thinking of listening, interest clarification and so on)

Yes. Problem solving teaches law students many non-traditional skills and cultivates the necessary attributes through a "learning-by-doing" method. Rather than simply read and discuss appellate cases, the students learn through simulations or situational case studies drawn from lawyers' actual files instead of court records. They also learn through hands-on practice and close supervision by clinical law faculty. They are taught problem solving theory and values, as well as practical hints on "how to" work with clients to develop comprehensive solution systems. They are taught not just to "think like lawyers"; instead they are taught to think like strategic analysts whose advice may or may not have legal dimensions. They are taught skills of listening, brainstorming, investigation, risk-analysis and decision-making. They are taught how to negotiate and when to collaborate with other experts to ensure that the client's needs are met. Most importantly they are taught to be caring--to care deeply for their clients, for their community, for their profession and for themselves.

Q: Will the lawyer as problem solver approach help to wean the profession from its overemphasis on adversarial approaches?

I hope so. But it won't happen until we stop using the appellate case method as the primary form of legal education. And don't get me wrong. I believe that the adversarial system used imaginatively and synergistically with other kinds of solutions is an integral part of creative problem solving.

Link to more information on the McGill Center for Creative Problem Solving. [www.cps.cwsl.edu]