Wes Porter, a professor at Golden Gate University School of Law, was inspired by Judge Tina Habas's recent View from the Bench: The Missing Link blog post. His thoughtful and responsive post follows:
I printed out Judge Habas's post for my Litigation Center bulletin board immediately.
Judge Habas has identified both a universal goal in modern legal education and a critical distinction between advocacy/skills courses and doctrinal courses. The universal goal is, the component parts should always link to the overall learning objectives of the substantive subject matter. For instance, in a doctrinal course like evidence, students in my class own a "pedagogical GPS" - that is, they can stop me at any point and ask “where are we?” They own the right to ask where (or how) a specific lecture topic, hypothetical problem or even a tangential classroom discussion fits into the "big picture." This idea is not mine. Many educators believe (and write) that learning must always relate the parts to the whole. Law students do begin to take ownership of their GPS the very first time the professor responds appropriately and takes 2 minutes to relate the immediate topic to the larger learning objectives of the course.
The critical distinction with advocacy/skills instruction is, the tables are turned. We, as skills instructors, must demand the connection (the "link" as Judge Habas writes) between the many advocacy exercises and mock trial performances and the overall story, case theory and theme. Without knowing, we do it all the time. We ask, "why are you asking that question?" or "stop right there, what will you say in summation about this line of inquiry?" But just as often, as Judge Habas suggests, we can run the risk of "gloss[ing] over this requirement."
I offer two simple ways to facilitate the constant connection, and make known our expectation of this running link, between the “parts” of trial and the “whole” – a persuasive story, theory and theme.
First, instead of (or in addition to) "scripts" for witness examinations and jury addresses, I require brief, bullet-point “goals” from students. These goals are distributed to the observing students during the performance. My students expect that the instructor will stop the performance and ask our performing students and/or observing students to relate a specific examination question or jury argument to one of the pre-identified, bullet-point goals. It becomes a group expectation that all are listening, thinking and voicing for the link.
Early in the semester, I front my expectation of the “running link” through a cross examination lecture. I demonstrate a cross exam of a student with my bullet-point goal displayed on a large screen behind the witness as I ask questions “linked” (and intentionally not linked) to that goal. I also ask observing students to then identify the bullet-point goal in good student demonstrations.
Second, after nearly all witness examination exercises, I regularly require an observing student (not previously selected) to deliver the corresponding portion of the closing argument. The follow-on exercise can be quick and serves several purposes. Primarily, the observing students listen to the performance and think about it in terms of the relational analysis Judge Habas describes.
Even better, when the corresponding closing(s) from (an) observing student(s) fall(s) short, the instructor need only ask the group, why? Was it the fault of the performing student?: lack of an overall goal? the witness examination was not clearly linked to that goal? Or was it the fault of the observing student?: the failure to listen? failure to understand the overall goal? failure to understand the examination? The group observations and discussion will surprise you. In a few extra minutes, the group, as opposed to the instructor alone, will regulate and access the “link” between the trial exercise and the overall goal to persuade a trier of fact.
Thanks again to Judge Habas. Much appreciated.
--Wes Porter
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