CLEs: Lessons Regarding Lectures and Programs–Part I

I have been giving CLE lectures almost regularly for 15 years, or so. Generally speaking, there are three ways to present them. (1) Most often they are summaries of decisions occurring during the last year or so. In this category, (a) “governing” cases from supreme courts are mentioned, with a few words said about the central ideas, (b) several relatively recent decisions of the federal circuit courts where the locale of the CLE state is within its jurisdiction, and then (c) most of the rest come from lawyer court decisions.

Within the (c) category there are two subparts, (c)(i) and (c)(ii).  Category (c)(i) contains decisions from district courts; these are almost always federal district courts, although there are a few states where some opinions of district courts are reported.  Category (c)(ii) consists of opinions of intermediate level courts of appeals.* Usually there are several of them; much of the lecture time is spent listing and briefly summarizing them; some time is spent trying to link them to supreme court opinions somehow; and the rest of the time is spent showing how the various court of appeal cases are different from each other in logic, semantics, arguments, and. . . .  Usually the arguments as to distinctions are represented to be subtle but are in fact no different except as to vocabulary, nomenclature, and language.  (The reader should notice that there is, at most, small distinctions about the previous three terms.)

(*Notice that the symbols breaking up the topics into different topics and/or different subtopics are similar to the way CLE essays are organized.  Granted, sometimes courts use the same or a similar approach.)

Hardly ever is there any discussion of truly fundamental cases.  Here is an example.  The law of insurance bad faith in virtually every state began in relatively recent years, usually about 40-50 years. There have been some changes since than in every jurisdiction, and those are often summarized briefly and superficially.  There is almost never any real discussion about what the foundation cases from other states look like, the social function of the foundation decisions from the relevant state, nor the broad and underlying reasons there might be a dissent.

It has already been pointed out that there is such a thing as insurer bad faith, but insurance policies are actually contracts. (Well, everybody knows that.) The law of insurance bad faith is usually thought of as a tort, not exactly identical with but at least somewhat similar to insurer adjustment negligence. So what we have hear is a tort built on a contract or contract breach. Closest to the cause of action, insurer bad faith is thought of as a tort, although there must be a contract breach in order for there to be that tort.  Now for what many lawyers don’t know or pay attend attention to.  There is along history of there being bad faith attached to purely commercial contracts.  One would think that this conceptualization could be extended to all contracts whether commercial (meaning two business entities) or “one half commercial” (where one of the parties is a commercial entity and the other is a person not in a commercial context) or one that is purely personal.

Those who wish to hear or give these lectures–or who pretend to perform–or hear them–grasp the real point of CLE courses exactly.  Their purposes–whether the speaking or the hearing–is to do precisely what they actually do. For everyone: showing up.  For the speakers: “looking” good; after all work may come out of all this, particularly if someone is there from the Office of In House Counsel.

First, summarize cases that were decided recently which the attending lawyers are unlikely to have read, really understood, cared about, but have a sense that they “might or should” pay attention and have a bit of knowledge about them.  Sometimes those attending want mostly to get the notebook so that they can look at it later, if need be.

And a second purpose for attendees is to meet the CLE requirement of the licensing jurisdiction(s), including the ethics requirement.  (The second invariably weaker in performance and attention than the first.  It seldom plays any significant role in planning. Often it’s passed off by the rare planner who really wants it. Sometimes presenters are asked to include a “couple of minutes” on the subject and to be sure and include something in the prose that goes in the binder that is passed out.)

Often those attending doze, get there late, discuss non-legal matters in the hallway, and leave early.  One friend of mind showed up at the CLE lecture near the end, e.g., 3:45 on Friday afternoon, just in time to fill out the registration sheet required by relevant state bars, and leave. So much for the ethics requirements calling for honesty.

In any case, it is time to outline what has been said, implied, or to be “found” in nearby bushes.  The practice in the present day is to use Power Point slides. Although most don’t recognize this, they should be in large enough type set that the persons in the most distant rows can read what’s there on the screen. In addition:

• Focus on  summarizing recent cases. 
• If there is any “criticism” make it brief and tactful.
• Never explore underlying social or cultural trends.
• Avoid economic analyses at all times.  Don’t even cite the Nobel Prize winners.
• Be cautious about using anything visual.  Sometimes photos of burned buildings are OK. Photos of dead bodies are never to be used.  Often no photos should be used at all, and certainly none of the lawyers that tried a given case or the judges that decided.
• A cartoon here and there is probably not such a great idea, but
• Sometimes lectures can be built around a few cartoons.  The speaker should not try this unless s/he has already proved talent at doing it.
• The “Planning Committee” should restrict the number of “Cartoon Based Lectures” to one per CLE program and it should beforehand explicitly limit the number and explicitly pick the speaker.  
• There may be a dissent on this point.  The argument would be that cartoons can relieve the monotony of the usual presentations.
• No presenters should ever draw and word their own cartoons, except for those who have done this for the New Yorker, or some mag like it.  
• Well done videos of plays, and the like about trial performances, can be helpful, and attention getting if done well.
• Performances of trial presentations by dramatically proficient presenters can be riveting. Maximum: Two per CLE.
• Presentations by professors who have never actually practiced law are seldom any good and almost never really helpful, except for the novitiates.  (Example: “The Constitutional and Other Legal Foundations of Administrative Law in General and It’s Special  Application to Insurance Underwriting Under the Laws of This State.”) CLE sessions are not law school classes. 
• Avoid impossible-to-understand hypos: “How the Arrow Theorem Applies to Health Insurance.”
• Avoid the horrendously complex: “A Disquisition Upon the Legal Structure of the Affordable Care.”) Act.”  This is true even if they look easy, e.g., the so-called “Trolley Problem.”
• The tempting hypos I just named are not really relevant anyway.  So, avoid tempting hypos unless the are obviously, obviously, obviously connected to at least one case under discussion.
• The presenter should avoid formulating one or two arguments in significant opinions and focusing on them for the half-hour allotted.  (I was recently informed by a law review editor that arguments are not to be found in court opinions, but instead to be found in  in briefs presented to such courts. What are to be found in court opinions are lines of reasoning.  This editor though that CLE Planning Commissions should inform speakers about this significant distinction and make sure of conformity. 
• No presenter should try to overthrow the essence of the real functions of CLEs, as has already been noted, e.g., with deeper analysis.  The audience will find this both boring and useless.
• Speakers should not be drunk when speaking.
• Speakers should reject the use of jokes, and they should be careful of what they take to be witty remarks.