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Wednesday, August 25, 2010

Critiquing Law Students-Various Approaches

In the last couple of days, I've gotten two sets of advocacy teaching evaluations, one from the NITA Public Service Attorney course and the other from my summer trial advocacy course. As always when I get evaluations, I look for trends and ways to improve my course and my approach to students the next time around.

The most interesting trend to me with my summer course at the law school was that students suggested I should not worry about their feelings and be more direct with some of my critiques. On reflection, I think I've fallen back into the habit of finding something to praise along with something to critique. The students said they would prefer to know what they should fix and improve, not what they were already doing well. They also said they'd like more critiques.

Their critiques fall squarely in line with what NITA and other organizations teach about critiquing. Find things to fix and help the students improve for the next time.

It's good feedback and good food for thought. As an aside, I've found over the last couple of years in both my doctrinal and skills classes, that as I give feedback and critique to students, the result seems to be that they want more of it. In my 1L criminal law class last year, I gave a couple of out-of-class writing assignments detailed feedback. On the course evaluations, the students said they wanted more writing assignments with more feedback--a trend that surprised me a great deal

Is there a right way to critique the advocacy performances of law students, or, for that matter, practicing law professionals? The four-step NITA model (Headnote-Playback-Prescription-Rationale) has been in place for over thirty years and has proved workable, durable and efficient in a variety of settings.

In recent years, there has been increased discussion among advocacy teachers of different ways to critique. Charlie Rose has introduced the "What-Why-How" method. Mark Caldwell at NITA now includes opportunities for re-performance as part of the NITA model. I have written about the transformational advocacy critique, a variation on the the techniques used by Joshua Karton of Communication Arts for the Professional. In practice, both at NITA courses and law schools, instructors use an astonishing and creative variety of approaches to critiquing students.

Although there are many ways to critique, there are some principles of critiquing that seem universal: (1) respect the student; (2) don't waste time praising the student, but rather find things the student can fix; (3) don't overload the student--fix one, or at most two, things at a time; (4) resist the urge to tell war stories; (5) manage time to maximize performance opportunities. I'm sure there are others I have missed.


  1. When I begin to help a student I always focus on how I can best get "buy in" by the student.

    The longer that I do this the more convinced I become that the key to proper critiquing is to not critique at all. What we really do is coach. We mentor, we mirror, we teach by example. The critique is really just the moment when we identify the problem for the student. We need to do that in a way that opens up the student to the solution that we want them to try. I think the need for student involvement, when coupled with a desire for a systemic approach that can be reproduced and managed for quality control, has had a huge impact on advocacy teaching in law schools.

    Different areas of the country take different slants on how to critique. Much of it seems to either be personality driven or connected to NITA or some other CLE type agency. The advocacy community as a whole has not written a lot of scholarship in this area, and it has been around 20 years or so since the last flurry of activity. Fortunately that seems to be changing now.

    For me critiquing is really coaching. I spend a lot of time focusing on the students, in class, out of class, and during performances. I am always looking for the connection, or lack of connection, betweeen the person they present in their personal life and the "professional" skin they wear when in class. It is hard to explain, but often a tilt of the head, a nervous smile, a slight twitch cues me in to the need to focus on what was happening at that moment. Sometimes I recognize what is happening and go right to it. Other times I know something isn't right, but I'm not sure what.

    When I know something is off but can't tell what it is I have accepted that I need to be humble and ask the student what they were thinking or feeling, or both, when I saw them do X, or heard them say Y. A transformational moment occurs when you ask the student to reflect on what was happening to them or through them during their performance.

    Once I've identified what the student was struggling with then I can choose the fix, suggestion, or change that I want them to try. I have found that the most important teaching moment occurs when they do it again, immediately after the critique, so that they can feel the difference.

    This accomplishes a few things. First it immediately corrects the behavior and models the proper behavior. Second the student experiences the difference in the context of how I have defined the problem based upon their input. Finally, it makes them ultimately responsible for their development.

    Once the students learn that I am not only going to allow, but encourage their participation in the process they buy in in a big way. This can be frightening if you have issues of control or do not feel secure in teaching. Truthfully though, we tell our students that they grow when they work through their fear and perform - how can we not do the same.


  2. I try to keep in mind that the basic structure of the clinical advocacy course (where the student conducts an aspect of trial and is then "critiqued") is designed to set up the "teachable moment". This approach helps the professor to keep foremost in mind that the audience for the his/her comments is much broader than the individual student; the assessment of the student's trial approach/abilities exist for the benefit of all who are exposed to the professor's comments.

    If the above "teachable moment" structure has value (and I think it does) then there should be as much value in the properly delivered and explained ("what" "how" "why") acknowledgment of something done correctly by the student, as there is in the more negative "critique". In fact we acknowledge the value of the positive example when we encourage instructors to demonstrate for the student/class the proper technique to employ. How much more effective is the "right way" message when it is done (and properly pointed out and commented upon by the instructor) by a student's pears.

    Too often the positive "critique" is dismissed as something to do with the ego stroke for the student. If proper critiquing methodology is employed, the positive comment can be as effective of teaching tool as any other approach.


    Tom Stewart

  3. Agree with the distinguished comments above - my BLUF (and this is nothing ground breaking) is that students may have not ever seen an example of a good (opening/direct/cross/closing.

    Seeing a sample (whether by you, guest speaker, or something captured on video - movie/CLE makes it come to life.

  4. I think Tom's comment about "teachable moments" is insightful and very important. And he's right about the teaching value of a good performance--students benefit tremendously from knowing WHY a good performance worked.

    I've seen Charlie coach students, and he's very good at it. In order to make it work the way Charlie does, the instructor must be adept at reading people, listening to and observing verbal and nonverbal cues, and keeping student input within its appropriate channels. Not everyone has these people skills. Furthermore, classroom management skills are important as well. A class can easily gallop merrily away from an instructor who hands over the teaching reins to the students.

    Thus, I still think there is value in finding the teachable moment and then using a critiquing--rather than coaching--methodology to help a student along. Some students need to be directed.

    I try to use a mix of methods with students, based on my own sense of what will work best with them. I've noticed that when Joshua Karton teaches, he always spends a tremendous amount of time observing the students, taking notes, and thinking about what approaches to take with each person. He is at his very best when he has had a day or two to observe students before he begins teaching them.

    If you've ever watched him, he has an uncanny ability to match the teaching method with the individual student. I've seen him coach, cajole, direct, beseech and yell--but never the same templated approach to every student.

  5. Chris's comments about Josh are spot on. I also agree with him about the need to mix techniques and to maintain control of the room. I have found that to a certain extent the courses that I run for lawyers and the classes that I teach each have their own collective personality. I need to know not only the way the individuals in the room work, but how the group works as well. I spend a lot of time initially making those connections and getting that feedback, both verbal and nonverbal, so that I can later make very important decisions about how to critique/coach/teach, or even do all three simultaneously. Once you commit to that level of connection with the participants they know at a deeper level that you care. That knowledge often gives them courage to grow. It is generally the student that is either afraid of change, lacks self awareness or that is dealing with a personal issue that is sometimes challenged by this approach. I once had a student who could never get over the hump and connect his personality to the skill. He would always come up short. It was maddening. I did not relent though. On one occasion he got so frustrated that he left class for 15 minutes. I just said, "next," critiqued that student, and when he came back him I said, "you may continue counsel." He actually grew after that. I think he needed to know that there was no way out and I would make him do it regardless. That seemed to get us through. None of this is possible with pure lawyer skills. There are many trial lawyer skills that cross over, but ultimately you must be a student of human nature if you are going to teach a skill, or set of skills, that is based in large part on properly reading what it means to be human.


  6. I also must agree with BDG. Students must have examples that place the skill that they are doing in context. You don't want that example to be "Ally McBeal", "Boston Legal," or "LA Law." I use video presentations through out the course of the advocacy class to expose, reinforce and develop skills. At Stetson we have even created an online Advocacy Resource Center to help with this. I am so convinced that it is the right way to do it that I am including Vidcasts and Podcasts with the 2nd edition of my text Fundamental Trial Advocacy. We are visual beings, when we see it we can better perform it. How many times have you heard someone say "Show me, don't tell me?" It makes little sense to only tell them how to do it - we must have the ability to show it, and to show it properly if we are going to have "street cred" as advocates.

  7. Different folks need different stokes - still good advice. Before we critique we - the coach, critic, confessor, counsellor etc - need to have some insight into where the performer just was, and where the other members of the class should have been. What insights does that performer and his/her fellow students have into their performance?

    The more of this skills teaching I do the more I discover that the answers are already within the students. The skill is to have them reveal those answers at the right time and see those answers as their own. Then they remember and apply them. As Charlie says above, we need to note that so much of what we 'teach' is 'based in large part on properly reading what it means to be human'.