Friday, June 6, 2014
Should Trigger Warnings be Required When Teaching Trial Advocacy?
Should Trigger Warnings be Required When Teaching Trial Advocacy?
Mark Caldwell posed an interesting question via email to a group of advocacy teachers and friends this past week, based on an article The New Yorker published about the growing trend for "trigger warnings" in academia. According to the article, the term refers "preëmptive alerts, issued by a professor or an institution at the request of students, indicating that material presented in class might be sufficiently graphic to spark symptoms of post-traumatic-stress disorder." Mark gave me another link to an article in the Christian Science Monitor that debates whether trigger warnings on books are a form of censorship.
We, as lawyers, often deal with the dark side of life. It's part of what we do as a profession - clean up when someone gets themselves in deep doo doo. In becoming a lawyer you must have your eyes wide open that regardless of which area you choose to focus your practice you may come up against the ugly realities of the world.
As teachers, are we responsible for putting warning labels on case files? What about texts that discuss the law and use cases to teach legal points?
Mark's words do a nice job of capturing the reality, not only of law practice, but of law teaching. In an era of trigger warnings, what duty do those of us who teach lawyers and law students have to shield them from the ugly realities of the law?
With the permission of the participants in this conversation, I've included their comments below in this blog post. We had a thought-provoking discussion. I think it's fair to sum it up like this: for the most part, we all believe we cannot shield law students or lawyers from the ugly realities of life, but we do need to teach them to deal with and respond to this ugliness in a sensitive and professional manner.
From Robert McGahey, a judge in Denver, Colorado:
This is an interesting subject.
Does it have anything to do with the changing perception (both by schools and students) that people absorbing knowledge aren't "students" but rather "consumers" or worse, "customers?" I've read some stuff that suggests that when schools start treating students as customers, the customers start demanding more accommodation to their individualized concerns/difficulties.
Education isn't necessarily supposed to be easy, is it? How do we as teachers, (to paraphrase E.K. Hornbeck in Inherit the Wind), "comfort the afflicted and afflict the comfortable?"
Having said that, I seem to recall several years ago that we (NITA) stopped using the Pelosi v. Parker & Gould case file because several women participants thought it struck too close to home. Or am I imagining that?
Bottom line: real life lawsuits involve things that are uncomfortable, ugly, dangerous, scary, foul, messy, etc. How can our teaching of advocates – who have to deal with real cases – avoid those things? If we do, don't we run the danger of producing lawyers who mimic the Three Monkeys? Evil doesn't vanish because we ignore it, or because we choose not to see, hear or speak about it.
From Mark again:
Bob is correct about references to NITA case files. Another program I ran used a domestic violence problem and a participant commented to me. At the time, I brushed this off but now wonder about expectations. . . . As a profession lawyers deal with the worst we do to each other. As trial lawyers we must speak for those who have been wronged or wrongly accused. If we are preparing women and men for the rough and tumble world of litigation do we not have some responsibility to prepare them for such circumstances?
NITA offers a course for lawyers who handle domestic violence cases. One of the harder workshops is forcing participants to use "uncomfortable" language to tell the facts of the case. A rape is not an "incident" Describing the violence of that circumstance and the victim's reactions and feelings is what we have to do. If we speak for our clients we are obligated to deal with such dirty laundry.
That said, should there be fair warning? Maybe not for every course, but for those thinking of embarking on a career in law?
Karen Steinhauser, a lawyer and law professor in Denver:
As a law professor, I can't teach evidence without talking about the Rape Shield Laws, Criminal law classes include a lot of different types of things. I think that what is more important is not the giving of warnings, but monitoring and being sensitive to how we deal with cases – ie making sure that there are not inappropriate jokes, etc when these discussions come up.
I added these comments in an email to Mark:
This actually became a big issue in 2013 with the AAJ competition. The file was based on the Penn State case, and there was a movement to get AAJ to substitute a different case file. Lots of similar arguments raised among the trial advocacy coaching fraternity on both sides of the issue.
To me, the trigger warnings seem a bit overdone and give too much power to students to select their curriculum. That said, as I pointed out in last year's email debate on the AAJ case file issue, I have a standard warning that I use in my criminal law syllabus:
An important note about classroom participation. Criminal law is a messy business and often involves controversial or painful subjects. Please be respectful of the viewpoints and experiences of others as we discuss these topics. If you or someone you are close to has been a victim of the type of crime we are discussing for the day, please let me know before class that you would be uncomfortable participating in the day's discussion. I won't call on you, and I don't need to know the specific reasons for your discomfort. If, however, your objection to participation is merely ideological (for example, if you are morally opposed to the death penalty and don't want to be asked to give arguments in favor of the death penalty), you're out of luck. A good lawyer is able to see the merits and shortcomings of all arguments pertaining to an issue.
Every semester, usually when we talk about cases involving rape or sexual assault, I have one or two students opt out of the discussion, privately, before class. This has worked well for me for the past several years.
From Charlie Rose, a law professor at Stetson University College of Law:
I would go beyond what has been said so far and argue that we also have a duty to create and use materials that force our students to deal with issues reflecting the real world. I include race, gender, violence and the like as key components of my case files and class discussions and then model how to professionally deal with those issues in the classroom. The key is in the modeling. When we show how to deal with these issues professionally and then drive the discussion in the area of honestly dealing with them in a persuasive fashion we are truly acting as educators. When we submit consumerism we are becoming part of the problem. There is a concept called "unconscious incompetence" often referred to as not knowing what you do not know. In other words the person least capable of deciding what they should be taught are the ones being taught. This works for substantive teaching, but is less effective for the modality of how the substance is taught.
Just something to think about.
From Graeme Blanke, a barrister and law professor at Australian National University in Canberra:
In many of the courses we run we don't use topics that are 'sensitive'. However, when we do, we do let them know the general nature of the topic. Sometimes the reaction is 'you can teach us without needing that type of content' to which our usual answer is 'they are real issues and you need to know how to deal with real issues. Advocacy technique, rules of evidence etc are all important but you also need to understand how to cope personally with the topics, how to deal with them sensitively and ethically and, sometimes, how to protect yourself.
From Cheryl Wattley, a law professor at the University of North Texas College of Law:
As a lawyer, I totally identify with our need to teach students and young lawyers how to deal with uncomfortable subjects and like, Charlie, incorporate many of them in my classes.
However, as an African American woman who is most often in the minority in any gathering, I have a heightened sensitivity to the discussion of such topics. Often, as the only, or one of a few persons, of color present when such sensitive issues are presented, it can be a struggle.
I am attaching a YouTube link to "33" which is a reflection by African American students at UCLA law school about the burden and challenge of being in class settings pretty much "by yourself." It is not directly on point but I think that it is illustrative of some of the emotion and angst that is experienced by persons who are impacted, either as being a minority member, a crime victim, etc.
I think that larger question is how do we, as persons educating lawyers, create the sensitivity and perspective needed to handle difficult issues in a non-threatening manner. And, for learning how to do that, I would suggest that the view and opinion of a person in "that affected class" may provide the best insight.
From Hugh Selby, a barrister, advocacy teacher, and recently retired professor at Australian National University:
Be wary of what you ask for:
Warning: this post refers to sexual activity, consensual and allegedly non-consensual. It will satisfy prurient interest, be distasteful to those who believe that the Almighty only sanctions the missionary position and be boring to those for whom sexual attraction is a diminishing memory.
Warning: this post refers to unexpected death. This will be ignored by the young as irrelevant, confused with an online game by young adults, cause shudders to those who have recently lost a loved one, and be attractive to those who have had enough
I read the 'trigger' article and the early comments just hours after I had given a criminal defence lawyer advice on how to prepare for a jury trial in which his client's former wife is accusing the client of various forms of sexual assault encompassing all three apertures and three forms of insertion. There is no mention of toes. There are, however, lots of photos: this is a 'home made porn show' in which the actress has turned on the actor.
When this case gets to trial the judge will, of course, ask the prospective jurors if any of them have good reason to be excused. Any former victim of non-consensual sex can pass the judge a note and be moved to another trial ( though in the avalanche of sex cases in the courts today it's getting hard to find a good old fashioned thumping or a burg). And then the prosecutor will get up and make an opening address which, unlike foreplay, will put the jury to sleep with the use of language like vaginal this and penile that [ my apologies to those readers with same sex preferences, but you can fix it by deleting the inapplicable word and inserting the one that's right for you.]
My point is that the movers and shakers - whoever they are - for trigger announcements are not game changers. Common courtesy, that necessarily requires sensitivity, has always said,' Try to see it from another's point of view'.
In today's America the triggers that really matter, as distinct from fluff talk, are two: first, the triggers that are pulled each time a deranged human takes a gun they should not have and shoots to kill innocents in churches, schools, fast foods and shopping malls; and, secondly, the trigger words used by the police officers who must give the news to partners, parents, siblings and friends.
Cheryl pointed out that no matter how we handle these issues, "we must never lose sight of the fact that it does cause discomfort and stress, even if never expressed."
And Charlie agreed, stating,
From my perspective the trick has been to understand that discomfort and stress, and to have hopefully built a bridge of trust to those students so that when those moments come they feel safe and are willing to share those feelings. Those moments are precious because it allows us to discuss what is underneath the surface in the room. But that usually has to come through the professor to remove some of the emotion in the room.
I wanted to share all these comments with our blog audience, because in my experience, the "ugly realities" rear their heads in some form every semester in a law school class, and at every professional advocacy training course I've attended or taught in. All of us who have contributed our comments to this post would be very interested in hearing from our blog readers on this topic.
And because Mark initiated this discussion, I'd like to give him the last word:
I am part of another group of law professors who are discussing the human side of lawyering and what they are doing to help students deal with difficult issues. I personally like where our group has commented but Cheryl, Karen and Charlie are correct that as teachers we need to be sensitive to what is going on with our students. Then we need to help them appreciate or make decisions regarding where they want to go with their career.