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Wednesday, February 15, 2012

Preparing Students to Receive Critiques from Others

We've had some good discussions on this blog about the art, science and challenges of critiquing students.  (Link to those discussions here.)  We've focused on critiquing theory, instructor preparation, best practices, dealing with "pushback" and other related topics.  Most of the blog posts and comments focus on what qualities instructors can develop to enhance the quality of critiques and maximize learning opportunities: preparation, understanding, flexibility, respect, firmness, competence, to name just a few.  With sufficient preparation, practice and experience, we can establish and maintain conditions for successful, controlled, harmonious critiquing experiences--for the most part.

But what about those situations when our students will be critiqued by outsiders--people who aren't a formal part of our programs--such as judges, volunteer jurors from the community, guest instructors, or trial competition judges?  Student feedback from a recent trial competition reminded me that we need to prepare students and establish expectations for these critiquing experiences as well.

Let me share a horror story with you.  It's a true story.  Names have been omitted to protect the guilty.  I think I've recovered sufficiently from it to be able to discuss it calmly.  The situation: the final jury trial for my advanced trial advocacy class.  To make it as realistic as possible, I brought in a jury of volunteers from the community.  A federal district court judge presided over the trial.  The students had negotiated a pretrial order, created their own jury instructions, argued motions in limine; in short, had done nearly everything I could think of to make the trial as realistic as possible.

The trial was also realistic in the way it played out.  One pair of advocates--the defendants--had prepared for the trial, using the rules of evidence and procedure as shields and/or swords to advance their own case theory and obstruct the progress of their opponents.  The plaintiffs, in contrast, had blithely assumed that anything in the case file would be admissible and that all possible issues had been resolved in the two motions they had argued before the judge.  The plaintiffs did not even bring a copy of the federal rules of evidence with them to trial.  On top of that, as a partnership, their knowledge of evidence was unusually poor; I doubt they understood, for instance, the difference between hearsay and authentication.  Given these two approaches to trial preparation, the defendants--predictably--mauled the plaintiffs.  It wasn't even close.  Key pieces of the plaintiff's evidence were excluded, and the defense managed to admit nearly every questionable statement or exhibit into evidence.  

While the jury was deliberating, the judge--experienced in diplomatically critiquing law students as well as lawyers--gently pointed out to the plaintiffs that they had made several key errors in the trial.  The plaintiffs, perhaps delusionally hoping the verdict would still go their way, appeared to listen politely.

A few minutes later, the jury returned with a verdict for the defendant.  Pursuant to my normal custom for that class, I then asked the jury if they would like to provide comments and constructive critiques to the attorneys.  Before I could step in, a juror commented, to the accompaniment of agreeably nodding heads by the other jurors, as follows: "The plaintiffs looked like they didn't know what they were doing.  Every time the other guys objected, they got confused. They seemed to lose their cool. They never objected, even when the judge was looking at them like they should."  Then, making the comments even more pointed, while trying to soften their impact, he changed from the third-person to the second-person: "Maybe you aren't as experienced as the defendants, I don't know, but they ran circles around you in the courtroom.  I think you guys can definitely get better, though, and you have a lot of potential."  Not the most diplomatic or sensitive critique, but it was accurate.

Then came the response.  One of the plaintiff attorneys had reached her limit.  She stood up, wagging her finger at the jury, and explained that the other side had ambushed them and had cheated, the judge had made it impossible for them to try the case they had prepared, the jurors were obviously gender-biased (in this case the plaintiff attorneys were both women and the defendant attorneys were both men), and finally, as if my own personal embarrassment at this train wreck were not enough, she blamed it all on me as the wagging finger turned in my direction: "And what you guys don't know about the objections is, BEHAN [author's note: her tone of voice suggested my name might have been a synonym for a loathsome disease of some kind] TOLD US WE WERE NEVER SUPPOSED TO OBJECT IN THE COURTROOM.  OTHERWISE WE WOULD HAVE!!!  DO YOU THINK WE DIDN'T KNOW OUR OPPONENTS WERE CHEATING ON OBJECTIONS?  WE FOLLOWED THE RULES.  WE LISTENED TO BEHAN.  THAT'S THE MAIN THING WE DID WRONG."  

For the record, I said no such thing as "never object in the courtroom," although I have regularly advised students not to make pointless objections simply for the sake of making them.

I hope no one else has had a similar experience, but my intuition tells me I cannot possibly have been the only person to watch a student blow up in response to a third-party critique.  This is, after all the generation that grew up receiving praise for everything: participation ribbons, soccer games with no score kept and treats at the end for everyone, helicopter parents hovering and dispensing constant affirmations and self-esteem boosts.  They often equate effort with excellence, not realizing that it is possible to try very hard and fail, or to prepare and fall short.

When they are being critiqued by outsiders to the program, people who haven't been trained in critiquing and might know nothing at all about advocacy or trials, the possibility for unfortunate personal interactions is high.  The danger is heightened, I think, at competitions or events (such as final trials) in which they have invested significant preparation time.  I've noticed, for example, that the main criteria for some competition judges is availability, not competence or trial experience.  Recently, some of my students in a trial competition had the disheartening experience of being critiqued by a group of lawyers, none of whom (as we later learned at the reception) had ever actually tried a case.  Given their experience level, their comments were about as useful as one might expect.

So--how to prepare students to be critiqued by others?  I have a few ideas of my own that I'll share, but I'm hoping a few blog readers will provide comments.

First, it's important to explain what is about to happen, namely, that someone else with a different style, different viewpoint and different training is going to provide comments on their performance.  They need to understand that the critiquing parties may not follow the NITA 4-step method (Headnote, Playback, Prescription, Rationale), the Stetson 3-step (What, Why, How) or even your own personal classroom style.

Second, they should watch, if possible, the classic Christopher Walken Saturday Night Live sketch, More Cowbell.  Everyone they meet should be, to them, the great Bruce Dickinson, and if Bruce Dickinson wants more cowbell, then they'd better give him more cowbell!  Seriously, I use this sketch at the beginning of the semester in my trial advocacy course.  I teach a weekly lecture, and we have several adjuncts who teach the practice labs.  I feel it's absolutely important for my students to understand, appreciate and follow their expertise.  And this applies to outsiders such as judges or jurors.  They are all experts in observing other people and making decisions.

Third, they need to understand that a critique is a one-way conversation in which they listen while someone else talks.  Protests, arguments and explanations should be kept to themselves.  Perhaps in private conversations with the critiquing party afterwards, they can discuss the issue, but while being critiqued, they need to listen and be in receive mode.  

Fourth, it's just a critique!  If they don't like the advice they're receiving, they are free to ignore it or do something completely different.  Even if the advice is good.

Fifth, focus on the opportunity.  Nearly every critique contains something that a humble advocate can take away and use for the future, even if it hurts to hear it at the time.  We've all heard painful critiques in our lives, and as part of preparing our students to receive outside critiques, it's appropriate to share these stories.

One other thing: when I have the opportunity to exert some control over the critiquing process, I do.  I remind jurors and judges that these are student learners, and I request that their comments be constructive and respectful.  I ask focused questions, such as, "Tell me the most effective thing the plaintiffs did" or "What was the single biggest factor that caused you to vote for the defense in this case?"  It isn't always possible to do this, of course, but it does help set the conditions for a better critiquing experience for the students.

So--what are your thoughts on preparing students for outside critiques?  Any good horror stories?  Please share by clicking on the link below and commenting on this blog post.


  1. Ours is an adversarial system: someone wins and therefore someone else losers. There are all sorts of reasons why we lose: merit, luck, prejudice, lack of the right preparation, etc.

    Any one who wants to be an advocate better learn how to be gracious in defeat. That's the BIG lesson that student needed and probably still needs to learn.

    So how do we prepare people for life's handouts of bad stuff? Starts at home, goes everywhere they go. Those with self awareness get over the "it's so unfair", think about the experience and save the lessons. Those whose life is dedicated to blaming others for their own deficits may have great futures but NOT as advocates dealing with real people with real problems.

    I'd like to think that student has come by Chris' office and apologised - that's my optimistic nature.

  2. I find myself spending more time mentoring what it means to be an adult human being who is a member of a profession. They aren't specifically advocacy skills but are so necessary. What do I mean by that? I have to teach the student how to accept adult feedback that is not universally positive before they can receive critiques about their actual advocacy performance. Years ago a student who is now a colleague and good friend of mine was in a trial advocacy class I taught. He lost it in the middle of examining a witness and literally fled the courtroom in tears. He slunk back into the courtroom about 15 minutes later. I stopped what we were doing turned to him and said, "Counsel, you may continue." It made the point - and he rose to the occasion. Sometimes we are the first person to ever push them while holding them accountable as adults. It is often a cathartic moment for all of us. Sometimes you just can't run, or hide. That is a lesson worth learning.

  3. Hugh, your optimism is misplaced. This student never apologized. She graduated a few years ago and I haven't kept track of her, although I have no doubt her attitude is a tremendous impediment to her happiness and success. This was not my only bad experience with her. I found her thin-skinned, self-absorbed and constitutionally incapable of objective self analysis. If she is trying cases for a living, I suspect she loses often and gets a lot of "bad juries" and "stupid judges" and is constantly being undone by "hostile witnesses."

    From time to time, I continue to get students who get angry or melt down in the presence of anything but total praise. They always want to interrupt and explain why the critiquer is wrong, or why a deficient performance is really someone else's fault or the result of environmental factors beyond their control, or worldwide or local conspiracies against them. These personality types frustrate me. I think I've gotten better at dealing with them, but it's never pleasant.

  4. My favorite is an old NITA horror story. We were teaching objections. I was making the point that when you object, you must make it so that you can be heard. Apparently, when I did one objection during my demo, I hit the table with my right hand, making a loud noise, and followed it with my fervent, “OBJECTION!”

    You can guess what happened – during the trials, one of our students objected often, and every time he did, he slapped the table hard, and yelled, “OBJECTION!” and then proceeded to identify his objection. After watching this happen 5 or 6 times in a row, the presiding judge (now one of my colleagues) finally said, “Why do you keep doing that?” and the lawyer pointed to me in the audience, “Because SHE told me to!”

    So, what’s my point? First of all, something I had said clearly led this person to believe that this conduct was appropriate, and even encouraged. That was my fault, no doubt about it.

    But there was something else at work, too. This particular lawyer was the type of person who was ALWAYS searching for ways to cover his own behind, and never made a single decision that he couldn’t point to somebody else if it went bad. Needless to say, if he was praised for something, there was no “blame” to go around. My point is this: in the same way you cannot fix “stupid”, you cannot fix this kind of defensiveness. It is a basic personality trait for certain people, and heaven help us, those personality traits are sometimes directly drawn to trial practice. By the time we get these folks in Law School, their personalities are fully formed. We have very little impact on who they really are. We cannot always predict just who will flame out like this student did, and who will ultimately be able to truly learn from these kinds of experiences. We can remind our students until we are blue in the face that sometimes they will get bad rulings; sometimes they will come up against lawyers, and even judges, who are lazy, who are mean, or who obviously know the law and will enforce it (as in this case). You cannot fix what happened here, because this student was defensive from the outset – in her lack of preparation, her attitude that it is going to be easy because after all, we are just students and the judges should coddle us.

    I say this because I see this behavior EVERY SINGLE DAY in real, live court. We just need to be able to recognize these kinds of personalities for what they are, and we are the ones who need to be self-assured enough that when we end up getting “blamed” for bad behavior, we are secure in the feeling that we know the truth.

  5. The experience sounded painful for all. When I tried a case as a student to a NITA jury Mark Caldwell invited the students to ask the jurors privately for feedback if we wanted. I was one of the few who did, but it was useful to me, and not nearly so painful as the story you described.

    My conversion to NITA-style advocacy and teaching came primarily from learning that much of the popular knowledge for trial work was in error, and that I could reach a higher level of advocacy if I studied and learned from the best. Thus, I have to wonder if the "non-professional" feedback is likely to lead to a successful learning experience. And to the extent that it conflicts with or drowns out what you are trying to teach the students it could even be counter-productive.