From the Courtroom to the Classroom Past and Present Litigators Inspire Next Generation
Denise Forster and Emily Williams
Never before has the Law School provided so many — and such varied — ways for students to prepare for careers in litigation. The advocacy courses and clinics offered represent the expansive offerings taught by a host of faculty and practitioners rich in litigation experience. The Law School continues to enlist distinguished practitioners to supplement its faculty — enabling more expansive clinics and advocacy courses.
Through clinic work, second- and third-year Law students are able to perform like lawyers in actual appellate, criminal prosecution and defense, and even U.S. Supreme Court cases. These practical experiences dovetail with the substantive curricular courses to produce tomorrow’s top litigators.
Besides the constant influx of practitioners to the adjunct faculty roster, the Law School has recruited faculty who exemplify how practical litigation experience harmonizes with academic interests and scholarship. They provide students with an enhanced perspective on the black letter law reflected in the typical casebook.
From Federal Prosecutor to Professor
Associate Professor Rachel Harmon has transitioned seamlessly from the world of litigation to academia. After eight years as a prosecutor with the Department of Justice, Harmon joined the Law School in 2006, ready to teach the law she finds endlessly interesting. “I wanted to join the ranks of the faculty who provide the substantive background for litigation,” she explains.
Now in her second year of teaching, with three courses this semester, Harmon is still too busy to hang the artwork stacked against the walls in her office. Surrounded by piles of criminal law research in progress, she feels she’s crossed over from courtroom to classroom with relative ease.
Harmon enjoys the diverse components of academic work, much as she did of her government work. As a civil rights prosecutor, she relished the interplay of criminal investigation, legal research and preparation, and trial work. As a law professor she appreciates the rigors of legal research and scholarship combined with time in and out of the classroom with students.
Always deeply interested in legal research and scholarship, Harmon headed to law school after completing her graduate work at the London School of Economics. Her aspirations leaned toward teaching law, but she was drawn to a litigation career after clerking for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and for Justice Stephen Breyer of the Supreme Court of the United States. Now she is able to tie her former and current careers together in a powerful way.
“I think there is a benefit to having the litigation experience and then teaching the substantive law. My course is probably heavier on strategy than some other criminal law classes. I often address how to think about an issue in terms of its future in litigation.” Though not teaching advocacy courses, she manages to deliver important messages to her students. “Good litigators must know their case inside and out, and have worked through the possible legal obstacles they may encounter, and be prepared both legally and factually for those issues to arise.”
There is a multi-audience performance aspect to trial that has some relationship to the performance aspects of teaching. “It is a constant challenge to remain flexible and to listen — formerly to the judge, witnesses, opposing counsel, and now to students — so that you are fully engaged in the moment at trial and in the classroom.”
It’s working. Harmon’s students praise the charged environment of her classes.
“Her experience as a prosecutor is evident in every class session, as the passion that she doubtless brought to that job suffuses her lectures,” says Eric Gerard. Gerard, who is working on a joint JD and master’s in American foreign policy and economics (at Johns Hopkins University), is an aspiring prosecutor. “Professor Harmon is not content to remain in the realm of abstraction; she unearths the ambiguities and implications of the decisions in a way that conveys their enormous practical significance, tying them to the historical context in which they were decided while informing us of how they play out on the street.”
Fellow second-year student Joseph Warden agrees. “Her experience helps us to understand the difference between black letter doctrine and practical application. It also helps us to understand why the law developed in the way it did.” After taking criminal law and criminal investigation with Harmon, Warden is now her research assistant. He plans to split this summer between a firm in Washington, D.C., and one in Wilmington, Delaware — doing litigation in both firms.
Students agree that Harmon has a gift for tying law and practical skills together. “She is quick to acknowledge both the validity and weaknesses of worthy counterarguments to an opinion before leaving us with a good understanding of how the case under examination changed the law of the day,” says Gerard. “This makes the law easier for us to apply to real world events, which I believe makes us better prepared for careers in litigation,” added Warden.
Harmon finds that the research, writing, and teaching components of being a professor match well in many respects with the legal groundwork, investigative work, pre-trial prep, jury instructions, and motions required of a litigator. She is also happy to be able to delve deeper into the law. “As a practicing lawyer I would confront interesting legal issues or policy questions, but then quickly have to come up with an answer for the litigation I was involved in and move on to the next thing. I found myself wanting to know more, go further, to figure out how it all works, and it seemed I could do that better in academia. I really like a combination of theory and practice. I like understanding the ‘whys’ behind things as well as just doing them.”
When she switched careers, there was a slight apprehension. “A number of people suggested I had been in practice too long to still be able to think like an academic — because practice does shape problems you think about and your way of thinking about them. To me, it seems that there’s actually a closer relationship than practitioners and academics sometimes realize; that academics are concerned about the ways their scholarship translates into the law that matters in the world,” she says. Harmon emphasizes that “Virginia values practical experience and prepares students for practice. It also attends to the relationships between the more theoretical or academic concerns and those that affect people on the ground.”
Just Getting Started
In spring of 2007, Toby Heytens ’00 was just finishing his first year of teaching civil procedure and civil rights litigation when he was recruited by the Solicitor General of the United States, Paul Clement. Heytens was appointed as an assistant to the Solicitor General for the next two or three years. (See sidebar on Heytens’s appointment to the OSG on page 46.)
Having known no professors and very few lawyers while growing up, Heytens had not exactly dreamed of becoming a law professor. Still, it’s a thought he’s carried with him since he was a student at Virginia Law. Heytens’s professional experiences during and after law school were ideal preparation for his new role as associate professor of law at his alma mater.
In the six years since graduation, Heytens pursued his interests in civil procedure, federal courts, civil rights litigation, habeas corpus, and remedies through a wide variety of positions. Following graduation, Heytens clerked for then-Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit. He next served as a Bristow Fellow in the Office of the Solicitor General. During 2002–2003, Heytens clerked for Justice Ruth Bader Ginsburg of the Supreme Court of the United States.
After clerking, Heytens worked in the Washington, D.C., office of O’Melveny & Myers, where his practice focused on appellate litigation, including United States v. Martha Stewart. In the spring of 2005, Heytens took a leave from O’Melveny to serve as a visiting assistant professor at Cornell Law School. He joined the Law School faculty in fall of 2006.
Upon joining the Law School faculty, Heytens was excited about bringing his litigation background into the classroom; “I think having worked in different parts of the system and from different angles and on different kinds of issues is very helpful in terms of teaching,” Heytens said.
Third-year Ross Goldman hopes to build upon his summer experiences and litigate when he graduates in May. He misses having class with Heytens. “Litigators need to be sure that they explain their position to courts and other lawyers as clearly as possible. They need to be sure that others can follow the facts, understand the law, and contextualize the legal argument within the broader legal framework. This organization evidenced itself every day in Professor Heytens’s class,” Goldman says. Third-year Katie Burke thought Heytens’s civil rights litigation lectures “brought together legal theory and doctrine highlighted by insights from his practical experience. We began the course by reading about a case Professor Heytens worked on. This lesson had a tremendous impact and shaped the way I thought about the rest of the course material,” she says. After clerking next year, Burke hopes to go into litigation.
The transition back to academia should be natural for Heytens. “I’ve always loved being in the academic environment, having the opportunities to think about and explore different ideas,” Heytens says. “The culture at UVA is fantastic and is really second to none, and I can already see how this brief detour will make me a better teacher and scholar when I get back.”
Virginia faculty remain invested in the world of litigation, and that serves the Law School and its students well. Second-year Gerard sums it up succinctly, “The opportunities to gain experience in litigation are phenomenal, from first-rate trial ad classes, to upper-level offerings, to clinics, to moot court, etc. I’m taking trial ad now, distinguished advocacy next semester, am on the National Trial Advocacy Team, and plan to partake in the Prosecution Clinic next year as a 3L. In short, there’s plenty to do at the Law School if you’re interested in litigation.”
The following is a sampling of Litigation and Procedure courses offered during the last three academic years.
Advanced Legal Research
Alternative Dispute Resolution
Alternative Dispute Resolution: Mediation
Complex Civil Litigation
Conflict of Laws
Disputes and Remedies (JAG)
Employee Pension and Welfare Benefits
Ethics, Integrity, and Avoiding “Club Fed”
Globalization and International Civil Litigation
International Civil Litigation
International Litigation of Economic, Social, and Cultural Rights
Medical Malpractice and Health Care Quality
Oral Presentations Outside the Courtroom
Personal Injury Law
Habeas Corpus and Wrongful Conviction
Pro Bono, Law Firms, and Access to Justice
Professional Responsibility in Public Interest Law Practice
The 9/11 Victim Compensation Fund and Mass Torts: Aberration or Precedent?
Trade Secrets: History, Theory, and Practice
Trial Advocacy College
Virginia Practice and Procedure
War Crimes (JAG)
Alternative Dispute Resolution: Representing Clients in Mediation
Environmental Liability Litigation
Expertise, Science, and the Law of Evidence
Hallmarks of Distinguished Advocacy
Human Rights Advocacy
Intellectual Property: Patent Enforcement
International Dispute Resolution
Jury Trials in America: Understanding and Practicing Before a Pure Form of Democracy
Law in Society
Lawyers and Justice: Ethics in Public Interest Lawyering
Leagues and Litigation
Persuasion for Advocates
Strategy in Civil Litigation: Pleading and Procedure
Tax Practice and Procedure
Trials of the Century: Literary and Legal Representations of Great Criminal Trials
Principles and Practice Offerings
Practical Trial Evidence
Under the supervision of an attorney, students perform the lawyer functions associated with their cases, including client and witness interviews, factual development, legal research, preparation of pleadings and negotiation. Students with third-year practice certification may also be responsible for courtroom advocacy.
Appellate Litigation Clinic
Capital Post-Conviction Clinic
Family Resource Clinic
International Tribunals Clinic
Iraqi Tribunal Clinic
Supreme Court Litigation Clinic