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Monday, June 10, 2013

Tweeting-For Better Case Analysis

By Professor Wes Porter

Professor Porter teaches evidence and advocacy courses and directs the Litigation Center at Golden Gate University School of Law 

Teaching case analysis is always a challenge.  The skill of case analysis is critical for our courses and mock trial teams - and for a career in litigation.  While jury addresses, witness examinations, and motions in limine involve case analysis, we miss something when this skill is not isolated from other parts of trial presentation.  We sought to better segregate the skill of case analysis and diagnose related issues independently.  We focused more on case analysis in our advocacy curriculum and created a consistent, written requirement (expectation) to segregate the the skill of case analysis.
Modeling, More Case Files, and Less Review Time

Probably like many of the readers of this blog, we model case analysis early in the instruction.  Organize the good and bad facts, prioritize each fact, theory and theme, etc.  Yet, we must isolate, assess, and provide feedback to our advocates about case analysis.  We assign several new case files in every advocacy course, aside from the file assigned for their final trials, to promote case analysis skills.  For reference, our advocates may present 3-4 of the short files on Bocchino's Problems in Trial Advocacy during a semester (you may recognize the Brown v. Byrd or Myers v. NITA District School problems in the examples below).  We assign a new file with a relatively short amount of time before their initial in-class presentation (such as 2-4 days).    

Analyze Alone, Collaborate Before Presentations

We require advocates to review a new case file on their own.  We want the advocate to spend time with a file – or interviewing live witnesses in a simulation – and bring their personal assessment and perspective about their case to class.  In class, we then allocate time for short bursts of brainstorming among the advocates assigned to the same sides of the same file (typically 3-6 students).   The advocates during these 10-15 minute sessions engage with colleagues who have devoted equal attention to the case, yet likely offer different ideas and perspective.  The students can, and often do, refine their case analysis, reprioritize facts, and even switch out themes before in-class presentations.  These sessions simulate "real-world" collaboration and, we believe, produce better in-class presentations.       

Case Analysis Worksheet & Tweeting
After we provided more opportunity for case analysis and a collaboration-focused process, we sought to keep case analysis at the forefront of our advocate's attention during each trial presentation.  In addition to an outline of the assigned in-class presentation exercise, our advocates must file (or RE-file) a case analysis worksheet.  Our advocates must refine their case analysis worksheet for as long as they continue to work with a case file and present jury addresses and witness examination. 

The case analysis worksheet calls for some familiar information:  (1) your case THEORY; (2) your case THEME; and (3) the THREE most important facts to support your THEORY.  Many advocacy professors require advocates to articulate similar information.  As part of the worksheet, however, we require something else from our advocates: (4) TWEET your case.  Using only the 140 characters permitted by Twitter (although I don't take strict count – THINK: 3-4 short sentences), TWEET your case on the worksheet, with thematic language indicated in bold and any of the 3 most important facts underlined.  (See below for some examples from class last week in our Summer Trial & Evidence Program for students who recently completed 1L year – called "1st STEP").   

The case TWEET serves as valuable case analysis diagnostic tool.  The advocacy instructor learns: how did the advocate spend their 140 characters?  If not thematic language and their most important facts, what information did they prioritize in their TWEET?  To hook their audience ("followers" in the Twitterverse), how did the advocate choose between a thematic statement and reciting an important fact?  Which of the important facts did the advocate consider most impactful?  How did the advocate use theme and important facts together?

The instructor can refer back to the case analysis worksheet during almost any advocacy exercise that flows from the case file.  Ask students to TWEET their case to exercise and improve the skills of case analysis and collaboration.  Let us know the results.  What exercises or requirements do you require or recommend in advocacy courses or for mock trial teams to isolate case analysis?   

TWEET YOUR CASE   Wes Porter   -   Wednesday, May 29, 2013  

Continue to refine and then paste your TWEET from Brown or Myers case here.  If included in your TWEET (HINT: it should be): put thematic language in bold AND any of the 3 most important facts as underline

Some examples:
Not his streets. Defendant Zimmerman left his house because the 18-year old victim, Martin, was walking down his street.  Defendant confronted Martin in the street with a gun. After some words, Defendant shot Martin dead in the street.  It wasn't self-defense or protection - it was murder. These are not his streets.  They are ours - including young Martin.  
Parents depend on teachers
to watch over their children - to keep them safe. But 9 year old Johnny Myers was severely injured when he went down the slide headfirst because the teacher was not paying attention.
Jonny's parents depended on a teacher who failed to keep her child safe at school.

In most cases, planning is prevention, and Nita Day School did all they reasonably could to prevent harm by use of rules and warnings. Thrill-seeking Johnny disregarded the rules on the slide. He did not put safety first, so his head, not hit feet, hit exactly where he landed.  No planning could have prevented that. 
Irresponsible.  A 9 year old smashed his face on a slide during recess.  No warning sign was posted.  Only 1 teacher was in charge of 40 kids – and he was off doing something else. Nita School was irresponsible -  now it's time to hold them responsible.  

Choosing Speed over Safety.  Because he was behind schedule, Byrd tried to run a light when the car in front of him had  stopped for it.  Brown stopped in front of the crosswalk, mindful of the light and children around. Byrd chose speed over safetythe safety of children and other drivers - and crashed into Brown's car 10 feet into the intersection. 
Willing to run the light, willing to run the risk. Brown was careful, knowing children were nearby. When the light turned yellow, Brown stopped before the crosswalk.  Byrd was late for a meeting and, despite the danger, he was willing to run the light, willing to run the risk. Brown got hit from behind when he stopped and was injured.

Brown dangerously stopped suddenly after entering an intersection forcing the Defendant Byrd to tap his car bumper.  No damage was suffered; no injuries were reported.  No harm, no foul. There was no damage to either vehicle.  The police officer did not issue any citations. The plaintiff has played tennis and drank beer since the accident because he didn't get harmed.  
False sense of security. On April 3rd, 9-year-old Johnny went to school and, during recess, while playing on the slide, he got hurt and needed 100 stitches on his face. One teacher for 40 students - no one protected Johnny from getting hurt. Johnny and his parents had a false sense of security. 

Out of control. Nita Day School cannot be responsible for a child who doesn't follow the rules, who doesn't listen to the teachers, who was out of control.  The supervising teacher on the playground had everything under control. But one child chose to disregard the rule. This one child was simply out of control.

1 comment:

  1. For those readers who also teach civil litigation the 'tweet' approach works well when having students draft the orders they would like a judge to make on any pre-trial motions. The discipline of expressing the outcome clearly, but succinctly, is valuable: doing it as a tweet adds 'glamour' and 'fun'.