Trial Advocacy by Distance Learning

Trial Advocacy by Distance Learning, or, Advocacy Adventures in Cyberspace: A Cautionary Tale

Introduction

Last summer, I experimented with teaching a basic trial advocacy class through distance learning. Except for the final trials, all class instruction and interactions between students and the instructor took place using both synchronous and asynchronous distance learning methods. I required the students to return to the law school and try the final trials live and in a courtroom in front of juries; I was not brave enough to try a final trial on Google Hangouts with the participants in four or five different locations.

At the end of the summer, I gave a presentation about my experience at the South Eastern Association of Law Schools (SEALS) annual meeting as part of a panel organized by Suparna Malempati of the John Marshall-Atlanta Law School and moderated by Charlie Rose of the Stetson University College of Law. This blog post both summarizes and expands on that presentation.

It is a cautionary tale. It might even be a tale full of sound and fury, likely told by an idiot, and perhaps signifying nothing. The bottom line, however, is this: if you and your students are prepared to work an order of magnitude harder than you would in a live trial advocacy course, you can use free technology resources to create a meaningful and successful trial advocacy teaching and learning experience. But you will have to work very hard indeed to bridge the gaps created by trying to draw people together in cyberspace.

Distance Learning

Distance learning is one of the most popular current trends in higher education. The idea is that schools can use technology to bring students and professors together, freed from the constraints of geographical proximity, time, or even classroom space. The software platforms available for distance learning courses are sophisticated and offer a variety of tools to enhance both the delivery and reception of courses.

Administrators view distance learning courses as profit centers for their institutions and departments, and indeed, they can be lucrative, particularly if an institution is able to draw students from outside campus to take (and pay for) courses. Depending on the compensation model used, these courses can also financially benefit instructors; many institutions use enrollment-based formulas to compensate instructors.

Synchronous and Asynchronous Distance Learning

Broadly speaking, distance-education courses can be divided into two major categories: synchronous learning, in which the instructor and students are simultaneously linked together through technology in real time, and asynchronous learning, in which the instructor posts video lectures and other assignments that the students watch and complete on their own schedules according to deadlines set in the syllabus. Of the two categories, synchronous learning most closely replicates the actual classroom experience, whereas asynchronous learning is, in reality, little more than an updated version of the correspondence course of days gone by.

Regardless of whether distance education is delivered synchronously or asynchronously, students appreciate its convenience. A friend from another university recently informed me that more students in his department take required major classes via distance learning than take them in the classroom--even though most of those students live on campus. For some students, the days of rushing across campus to catch an early-morning class are apparently over: one has only to log on to a computer and complete assignments within the time constraints set by a syllabus and distance-learning software. For other students, taking a course by distance learning can open up their schedules for important internships or learning opportunities away from campus. Asynchronous courses offer students the convenience of being able to take courses at their own pace and at times and places of their choosing.

Law Schools and Distance Learning

Because of the ABA limitations on distance learning courses,¹ law schools have been somewhat insulated from the rush to convert courses to a distance-learning format. Nonetheless, law schools have begun (whether reluctantly or otherwise) to join the distance-education trend. Law school curriculum committees across the country are alive with course proposals and debates about the extent to which distance learning belongs to a proper law school course catalog.

Using Technology to Enhance Live Advocacy Teaching

In the world of trial education, we are perhaps another level removed from the debate. We cannot imagine effectively teaching advocacy without instructors and students in the same physical location. Advocacy is, after all, a form of performance art, in some respects closer to theater than to a first-year contracts class.

Nevertheless, advocacy teachers have long used technology to enhance enhance the live learning experience for students, but not to replace it. Many of us have used online resources such as the Stetson Advocacy Resource Center, NITA's Studio 71, or the Golden Gate University Litigation Center to assist our students. These sites feature video-recorded lectures, presentations, and examples that students can as resources to help prepare for their classroom and courtroom performances.

On this blog, we've also posted numerous articles about how podcasts and video examples posted to the web can be a resource for students to help them learn trial skills: http://advocacyteaching.blogspot.com/2013/02/courtroom-advocacy-for-beginnersshaping.html; http://advocacyteaching.blogspot.com/2013/01/storytelling-again-great-storytelling.html; http://advocacyteaching.blogspot.com/2012/04/technology-advocacy-drills-achieving.html; http://advocacyteaching.blogspot.com/2011/01/future-of-advocacy-training-ipads-and.html; http://advocacyteaching.blogspot.com/2011/01/future-of-advocacy-training-ipads-and.html.

For more than thirty years, law schools and professional training organizations such as NITA have used video review of student performances to help increase student self-awareness of advocacy strengths and weaknesses. Often, video review takes place in the presence of, and with professional guidance from, a skilled advocacy instructor. In fact, advocacy courses that include proctored video review sessions are much more resource-intensive than courses that do not include such sessions. It takes time and manpower to conduct video review using traditional methods.

Technology can and has made video review more efficient. On this blog, we've posted articles about how technology has advanced to the point where we can give meaningful critiques to students, time-stamped directly on their digitally recorded performance videos that have been uploaded to the internet. For instance, Hugh Selby traced the history of video review from its early days in NITA training to modern web-based applications such as Acclaim. http://advocacyteaching.blogspot.com/2013/08/video-review-gets-new-lease-on-life.html. I wrote about using Acclaim for diagnostic trials. http://advocacyteaching.blogspot.com/2013/06/quick-update-on-diagnostic-trials-and.html#more.

Although no one has yet blogged about it, Lou Fasulo at Pace has a command center (I call it the Bat Cave) in which students can sit with him and watch live simulcast video performances of their colleagues in courtrooms down the hallway. While they are watching, both they and Lou can critique the performances without disrupting them.

In short, advocacy teachers are doing more and more with technology, but as I mentioned at the beginning of this section, most of our technology use is designed to enhance, rather than replace, the live learning experience. Last year, I decided to experiment with my summer trial advocacy class and offer the entire thing—except for the final trial—via distance learning.

My Experiment with a Distance-Learning Basic Trial Advocacy Course

Why I Tried It

Students at our law school are asking for more distance learning courses. Every summer for the past several years, I've offered a summer trial advocacy course. The last two summers, enrollment was down. When I talked to students, they told me it was because they were taking seriously the law school's advice to seek summer externships and jobs in the places they wanted to eventually work. In other words, they weren't going to be in town to take trial advocacy. Several students said they would take a distance-learning course if one were offered. I spoke to our associate dean about offering the course via distance-learning, and he agreed to let me try it as an experiment.

Technology Used

In setting up the course, I wanted to ensure that technology was easily accessible to students. I decided to offer the course asynchronously in order to maximize flexibility for students. I would post instructional videos and resources on the course web page, which they could access on their own time by the deadlines established in the course syllabus. They could record their advocacy performances on their own time and post the performances to the internet on their own schedule, but by the deadlines established in the syllabus. I would then watch the performances and provide comment and feedback to them in a timely manner. 

We used a combination of several programs. The first one was Google Hangouts. It is a free program. Students can link up with each other from different locations. In fact, up to 10 students can link up with each other in a private session. Google Hangouts permits participants to record their sessions to a YouTube channel. Each student was required to set up a Google Hangouts account and a YouTube channel for their recordings. After posting the recording to YouTube, the students could then embed the YouTube link in Acclaim, a program that permits an instructor or other students to make time-stamped comments on video-recorded performances. I was able to figure out how to do all this in about five minutes. I provided only rudimentary instruction to the students about what to do, and as far as I know, no one had any problems setting up the accounts or figuring out the technology. 

For individual performances not requiring a partner, students were able to record performances on their computers using a webcam, upload the performances to YouTube, and link the YouTube recording to Acclaim. They could also record performances and upload them directly to Acclaim without going through YouTube.

Technology Pros and Cons

For most performances, with most students, most of the time, the distance learning technology worked well. For example, we did several direct and cross-examination exercises in which the participants were located in different cities. When recording the video stream to YouTube, Google Hangouts sends the image of whoever is speaking at the time. When watching the video, the students could see themselves asking questions, then the image would shift to the witness answering the question. This seemed to work rather well. Google Hangouts even has a feature that permits the electronic publication of documents and images. When we did an exercise on exhibits, several students were able to publish documents and exhibits using this feature of Google Hangouts.

Once the videos made it to Acclaim, it was relatively easy for me to watch the videos and make comments. I felt this part of the course went well, actually. Students seemed satisfied with the amount and quality of the feedback I've provided. I've written about the Acclaim platform in the past. It works well, and when it doesn't, the customer service is remarkable. 

This isn't to say that everything went well with the technology all the time. Sometimes, students would experience internet connectivity or speed problems, and it took some of them multiple attempts to successfully upload performances they recorded on their computers. One student spent several hours attempting to upload a video of his opening statement and finally had to re-record the opening statement and upload it at the university, where internet speeds were higher than those available at home. Other students had occasional problems with either YouTube or Acclaim. From time to time, both programs will abruptly crash. There were several instances where students would believe they had recorded a session to YouTube using Google Hangouts, only to learn that it hadn't worked and they had to do it again. There were also several instances where students had problems getting Acclaim to link to their YouTube performance. 

Nearly every student experienced at least one or two problems with the technology. This was a constant source of frustration for them. I think the biggest problem came from poor internet connections. Computer video technology is amazing when it works, but when it doesn't work, it is incredibly frustrating for everyone involved. In this course, which combined synchronous performances using Google Hangouts with asynchronous review using Acclaim, there were many opportunities for technology glitches to manifest themselves. The frustration posed by the technology (particularly having to re-do performances) was one of the single most frequent complaints in the course evaluations.

I am not experienced enough with other available computer programs to know whether there is something better out there than the technology lash-up I used. Perhaps someone reading this blog could opine about other programs such as WebEx or Adobe Connect. I will say that I have used WebEx to participate in live meetings, and in my experience, it hasn't worked any better than Google Hangouts. It seems to me that none of these programs are any better than the internet connections available to the participants. If we all lived in areas with blazing-fast, reliable internet connections, I think distance learning would go much more smoothly.

The Benefits of Offering a Distance-Learning Trial Advocacy Course

There were several positive aspects of this course. First and foremost, I was able to offer a course to students that fit their time schedules and enabled students from across the country to take the course. In watching the videos, I observed that some students did their work in the morning, others in the afternoons, and still others late in the evening. I allowed them to pick a partner from the class for exercises requiring a partner, and they worked well together. I had fewer problems with students working together than I've had in live classes. I can only recall one or two instances where students told me they were having difficulty contacting each other or coordinating schedules.

Second, even though there were some technology glitches, by and large, the system I set up did what I wanted it to do. The combination of synchronous work with partners and asynchronous review actually worked well for everyone. In the cross-examination exercise, I played a difficult witness and was able to schedule times for each person in the class to cross-examine me via Google Hangout. Acclaim permitted not only me, but also the students, to view and comment on performances. Everyone in the class had to do an Acclaim review not only of their own work, but of another student's work, each week.

Third, the constant video review caused a tremendous performance improvement in presentation skills. By about halfway through the course, students were no longer using the distracting verbal and physical mannerisms that plague advocates. I attribute this to their having to watch themselves, and others, on video several times each week. They started to pay attention to these things, and as we all know, mindfulness solves most of these issues.

Fourth, their final trial performances were at least as good as in a regular class. I admit that I was worried about how they would perform on the final trial. I had them all come back to the law school for the final and try it live, to a jury, in the courtroom. My teaching assistant and I recorded an instructional video that showed them where to stand in the courtroom and walked them through the various stages of trial. Not only did we experience no problems with the final trials, I believe their performances as a group were stronger than most classes. Again, I think this is because of the increased level of self-review they experienced in the class because of the use of video. I will note that I used many of the same video review requirements in my traditional live trial advocacy course this most recent semester, with similar results. As NITA and others have long recognized, video review makes a difference, provided that the students actually take the time to watch the videos and have some guidance about improving their performances.

The Drawbacks

When reading the course evaluations after the semester, I found it interesting that nearly every student commented that the class was great, and they learned a lot, but I should never offer the course by distance learning again. They felt it was too much work to used the technology and said they would have preferred a live environment. I had thought, given their success at the final trial, that they would embrace the distance-learning methodology. I sensed that they would have preferred showing up in class to recording the videos and having to deal with technology glitches and all the extra review time necessitated by a class without live interactions.

From my standpoint, the course was far more work than I had bargained for. It took me two full work days a week to review and comment on video performances. I felt I owed this to the students since we weren't meeting in class. In fact, I received universally positive evaluation comments about accessibility, quality of review, timeliness, and so forth. But it was a lot of work, and the class drained me.

There was another drawback I hadn't anticipated. I had to make the same corrective comments over and over again. The students did not benefit from vicarious learning as they do in a live session where they can watch a performance, process someone else's mistakes while simultaneously mentally adjusting their own planned performance, and benefit from watching another student do something well. I have previously written about the benefits of vicarious learning in a trial advocacy teaching environment in an article entitled From Voyeur to Lawyer: Vicarious Learning and the Transformational Advocacy Critique. Suffice it to say that not a single one of these benefits occurs in a course where most of the feedback occurs asynchronously. 

Would I Do It Again?

No. Not the same way, anyway. While I am enamored of the asynchronous review capabilities of Acclaim, I have learned that asynchronous review of advocacy performances is far too much work for an instructor. It has its place, but it cannot be the foundation of an advocacy course, unless the instructor has nothing else to do. The efficiency of a live environment to the learning process is something I did not appreciate until I tried teaching a skills course without it. I made it work, and any competent advocacy instructor could make it work, but there is a high price to be paid for doing it.

If I offer a trial advocacy course by distance learning again, it will rely far more on synchronous learning. We will bring everyone together at the same time, most of the time, for most performances. I think the technology might support that now. Google Hangouts is actually fairly robust in its capabilities. I can't speak about other platforms, but I have to believe there are ways to make a live course workable. I would still use some asynchronous review, just as I now do in my live trial advocacy courses, but I would never again set aside the benefits of vicarious learning. Essentially, when I decided to build my course on the foundation of asynchronous review of all performances, I set up twelve individual tutorial classes instead of one class (I had 12 students). 

Conclusion

While it's possible to offer a skills class such as trial advocacy using asynchronous review of performances, it is not optimal. With hard work and diligence by both the professor and the students, students can reach a live performance level at least as good as students who are taught in a live or synchronous environment. However, both students and instructors experience frustration by the lack of a live connection with each other. In an asynchronous environment, current technology cannot fully bridge that gap.

1ABA Standard 306 governs distance learning. The 2014-2015 standard states that a law school may grant no more than 15 credit hours of distance-learning toward a J.D. See ABA Standard 306, available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2014_2015_aba_standards_and_rules_of_procedure_for_approval_of_law_schools_bookmarked.authcheckdam.pdf. Until the 2014-2015 academic year, the limitation was 12 credit hours per degree, with a student unable to take more than 4 credit hours per term. See ABA Standard 306 (2013-2014 version), available at the same hyperlink as above.