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Tuesday, January 4, 2011

Thanks, Thoughts and a Tingle

I wanted to continue discussing my thoughts about critiquing today. Many thanks to those of you that have sent me emails letting me know what you are thinking in this area. It is always good to hear from you. The need to talk about this topic, particularly now, when the world seems to change so quickly and completely in such a small period of time, is more critical than ever if we are to advance this thing that we love. I thank you for the things that you have said that make me think, we all know how hard it can be to get me to do exactly that. I wanted to share some of the thoughts that have sprouted from the fertile soil of your comments.

One of the main reasons Chris, Hugh, and I started this blog was to create a forum where we could share ideas. We wanted to capture the excitement and possibilities of a NITA training program where we were all together teaching each other how to teach. We have had that experience at Stetson in our annual Teaching Advocacy Skills program and the attendees there expressed a desire to be “connected” to other advocacy professors in those in between times. Not being one to ignore something that hits me in the face we began this blog. It is designed to be an open forum where all of us, regardless of the materials that we use or the methods that we employ, will share ideas. Teaching teachers is hard, it is fun, but is also a critical step that we must take to ensure that our craft flourishes.

We are, all of us, constantly learning from each other. Mark Caldwell is one of the absolute best NITA program directors at managing that process, and while I am always learning when I sit in a NITA program, that learning is exponentially increased when Mark runs the program. I must share with you that one of the first things I tell every advocacy teacher who comes to learn from us at Stetson is that they absolutely must experience NITA to become a complete teacher of advocacy.

I think having a law professor or two in a NITA program is a plus because we have the luxury of time that is denied to the practicing attorney. It brings a different perspective to the process and one that is helpful, although over time it does run the risk of becoming stale. I believe the practicing bar and law schools must grow together to create the best structure that allows us to guarantee quality advocacy teaching beginning in law school, through CLE programs and beyond. We must hang together, us skills professors and practicing lawyers, or we will all surely hang separately. For that same reason I always bring practicing lawyers to my Stetson conferences, there input is so valuable to the process and they make for great drinking buddies too.

I would be a much poorer teacher now if I had not been fortunate enough to have been introduced into the world of NITA teaching by Jeanne Jordan, Sandy Brook, Tom Singer, Jim Seckinger, Terry Rushton, and Mark Caldwell. It began with trial team at Notre Dame, and has grown into a calling. I’ve said thank you in other venues, but let me express it again here publicly. They are a small part of the list of folks that have taught me how to be a better teacher, lawyer and person - but they sit very high on that list. If you are interested in who else might be on it you can read it in the acknowledgments page for the second edition of my trial advocacy book. I put the names of those with whom I have learned there instead of a table of cases - seemed like the right thing to do to me. I also spent a good deal of time thanking NITA and John Baker for his leadership in this field in the preface. If not for NITA I would have never been given the opportunity to learn enough to have this tremendous opportunity and I am forever grateful.

It is that very gratitude that drives me now. I believe that we need to take the time to think critically about what we do and how we do it if we are to keep ourselves relevant for future lawyers. With that in mind let me share an idea about a way of thinking about teaching in a CLE program or an advocacy class. Of course it is built around the RULE OF THREES.

I think the best advocacy teachers break their teaching method down into three general approaches: (1) Drills, (2) Some version of the NITA Method that focuses on an element of a specific performance, and (3) what I think of as the Holy Grail of Advocacy teaching, the transformational critique - AKA “The Tingle.” You can imagine these three elements of teaching advocacy using a lot of different metaphors, but for me it is easiest to think of it either as food, art, or sport. Let me explain.


Imagine that you have to prepare a bowl of food for someone to eat. This food needs to be as nourishing as you can make it, as tasty as possible, and pleasing to those who will consume it. You cannot have a bowl of food that consists of only element - it gets boring and leaves the person eating the food wanting more. I don’t care how much you like mashed potatoes, by the third day of eating it you want something different - not only do you want something different, you need it, and if you don’t get it you let the cook know about it. So what to do?

Our teaching should be more like a hearty bowl of stew, with many different elements that combine to comfort you and give you nourishment. The vegetables in the stew could be considered the drills, a staple so to speak. While they may be bland and boring for the most part, they bind things together with a simple taste that is comforting. We know exactly what we are getting when we bite into them and we feel secure in what we are getting.

The critique method that focuses on an element of the performance is the meat in the stew (apologies to the vegetarians out there, just insert the word tofu instead, although it loses something), we have to have it. We look for it, we chew it thoughtfully and it is the thing we expect to get, and we are very unhappy when we get the last bowl of stew full of vegetables but with no meat.

The stock, the broth, the juice of the teaching experience is the case analysis. It is present everywhere and without it all we have is a bowl of vegetables and some raw meat. The stock is both separate from the vegetables and meat, and yet containing elements of them within itself.

The transformative critique occurs when we dip our spoon into the bowl and get that perfect combination of case analysis, drills and specific performance feedback. It has just a hint of some seasoning that we find hard to recognize, but that makes the taste explode in our mouth. Without the seasonings, without that mix, the stew is bland. It will nourish us, it will comfort us, but it doesn’t really fulfill the hunger that we feel. We are left wanting something more.

Now you can ruin a stew very quickly with the wrong seasoning, and too much can make it inedible, while no seasoning just gives you a bowl of meat and vegetables in hot water. Like the seasoning a good stew the tingle is used sparingly, but everyone knows it when they taste it. We need to have the courage to reach for the seasoning when we need to, and we should devote ourselves to becoming sufficiently good cooks in the classroom that we sense when it is time to add a little pepper to the mix!


When most folks sit down to learn to play the guitar they don’t just grab it and play. They begin with simples scales and chords, mastering each fundamental before moving on to the next. You take as much time as you need, better to go slow and get it right than to go fast and get it wrong. Our drills are like the rudimentary scales that a music student practices. They lay the bass (base) line for everything to come.

Once we have graduated from scales to simple chords we begin to play music. This first step of performance creates ample opportunities for the music student to learn. They make mistakes, get things wrong, miss notes, the list of specific performance elements to fix can be quite long. This is when we use the NITA method or its equivalent to fix specific problems. It is, in fact, the vast majority of what we do.

Eventually something special happens and an opportunity for individual growth presents itself. It might be about rhythm, playing with expression, interpreting the music, or getting in touch with your inner muse. When those moments happen magic comes out of a wooden box with some silver strings. It doesn’t happen all the time, but it never happens if the scales and chord progressions were not learned. The student is transformed into an artist, we transform our students into advocates.


When we first learn to play the sport of football we learn to block and tackle. But it is much more than just that, on the offensive line we break the blocking down, establishing foot placement, arm position, leverage, orientation, a host of minuscule details that must be learned, practiced, and mastered so that we can move on to installing plays in the offense. The same is true of the drills and simple exercises that we have students perform. They law the foundation for all that follows. If the student cannot perform these basic tasks then we cannot install the offense, we can’t perform.

After we have mastered the fundamentals of blocking and tackling we begin to learn our location on the field, the other players that we act and react with and to. Now we are beginning to play football, albeit at a very basic level. The coach stops us when we make a mistake and we “run it again,” usually until we get it right. He has all day to wait because he knows that we must master each specific element of the performance so that the offense can be installed and magic can enter in. If you we don’t master each piece it will never work right. We do the same thing when we are teaching at our best - they can’t practice something that is wrong because Murphy’s law will ensure that is the only thing they learn.

Next the offense is installed, and we forget our fundamentals, forget how to block because we are worried about being in the right place at the right time. We have all seen this in advocacy programs, move on to something new and it seems as though nothing accumulates. That is really not true, it is just that the stress of installing the new “play” makes them think, and when they think they cannot perform.

We struggle through practice after practice, and then one day it clicks. The coach changes an assignment, we “see” it as a whole and suddenly we score. That changed assignment, option at the line of scrimmage if you will, produces the tingle - Touchdown! It was the coach’s job to find that moment and seize it. We see those moments when we teach advocacy programs, we must seize them and make a difference for the students that have come to us for help.

So what am I trying to say with all of this?

We must master, teach and practice the basic fundamentals every time we have an opportunity to do so. We use drills, short performances and simple exercises to make this happen. Once the student knows enough to be able to get past fear to performance we increase the number of performance specific critiques based on a particular assignment that is tailored to the ability we wish to develop. It can be either broad or narrow, depending upon both time and circumstance. Finally, at some point in the process we must go beyond the nuts and bolts of teaching process to transform the students. Next time I’ll post some thoughts about the way to do that.

Till then, all the best,


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