tag:blogger.com,1999:blog-87975487498708640342024-03-17T02:41:07.395-05:00Advocacy Teaching BlogIn an adversarial legal system the quality of advocacy directly affects the outcome, and hence justice. This blog is for everyone -however they serve our legal system - who is committed to improving the teaching of advocacy skills and ethics so that parties and the community are well served by persuasive and ethical advocates.Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.comBlogger288125tag:blogger.com,1999:blog-8797548749870864034.post-32422341163965233402016-06-23T13:54:00.004-05:002016-06-23T13:54:56.101-05:00Technical Troubles with Google BloggerDear Friends,<br />
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As you may have noticed, we haven't posted many blog entries in the last few months. This is because we (along with many others) are experiencing technical troubles with the Google Blogger platform. The main problem is that Blogger no longer forwards new posts to blog followers or to our Google Groups email mailing list.<br />
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Google has promised to fix the problem, but as of today, nothing has happened.<br />
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We are considering moving the blog to another platform, such as WordPress.<br />
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In the meantime, we are temporary hiatus.<br />
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If you normally receive blog posts via email and you receive this one, please let me know; it would be an indication that the problem has at long last been solved.<br />
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Thanks,<br />
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Chris BehanChris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com7tag:blogger.com,1999:blog-8797548749870864034.post-2688312895823676482016-03-18T22:42:00.000-05:002016-03-18T22:42:24.509-05:00How Do You Spend the Last Five Minutes of Class? <br />
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<span style="font-family: "friz quadrata std" , sans-serif;"><b>The following guest post was written by Mark Caldwell, Program Development and Resource Director at the National Institute for Trial Advocacy.</b></span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Sometimes Face Book leads you further than updates of restaurants your "friends" have visited, Selfies of others bragging about where they have been, and reminders of a friend's birthday. This past week a post from my friend, and teaching colleague, Marianna Hogan directed me to a wonderful article on the Chronicle of Higher Education's page titled, <b><i>Small Changes in Teaching: The Last 5 Minutes of Class </i></b>(<a href="http://chronicle.com/article/Small-Changes-in-Teaching-The/235583">http://chronicle.com/article/Small-Changes-in-Teaching-The/235583</a>) by James M. Lang. I commend this article to your personal reading, along with the other posts from Prof. Lang.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Lang opines that,<i> "most faculty members eye the final minutes of class as an opportunity to cram in eight more points before students exit, or to say three more things that just occurred to us about the day's material, or to call out as many reminders as possible about upcoming deadlines, next week's exam, or tomorrow's homework." </i>In reading this I had one of those "cosmic whacks on the side of the head" as I recalled all too many sessions where I attempted to cram in one more performance or offer one more "critical" piece of advice that I knew would make every student a vastly improved trial lawyer. Lang reminded me of just how wrong I was. I was shamed into considering his solution and reminded it was a tool I had foolishly abandoned.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Lang's solution is not something new or revolutionary. In fact, it goes back to the basics of adult learning theory. Lang recommends the use of the teaching tool of <b>reflection</b>. Kurt Lewin<a href="file:///C:/Users/siu850484227/Downloads/2016%20How%20do%20you%20spend%20your%20last%205%20minutes%20of%20class%20time.doc#_ftn1" name="_ftnref1" title=""><span class=""><span class=""><span style="font-size: 12pt;">[1]</span></span></span></a> suggested experiential learning is circular in nature. There are four stages in Lewin's Cycle which follow from each other – <b>Concrete Experience</b> is followed by <b>Reflection</b> on that experience on a personal basis which may be followed by the derivation of general rules describing the experience or the application <b>Abstract Conceptualization</b>(applying known theories to it), and <b>Active Experimentation</b> (ways of making the experience unique to the individual), leading to the next round of <b>Concrete Experience</b>. In truth, this is what we do when we teach advocacy skills - we allow student performance (experience) and then make suggestions on how the student can change their behavior to improve their performance. We expect they will consider the reasons for change that we give them and apply them to both future classroom performances and then to make them portable to take to the next case (conceptualization). We presume the student will reflect on our recommendations and then own them. In reality, a busy practitioner or student may not have the time to actively reflect on our teaching.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Lang refers to the concept of the <b>minute paper</b>.<a href="file:///C:/Users/siu850484227/Downloads/2016%20How%20do%20you%20spend%20your%20last%205%20minutes%20of%20class%20time.doc#_ftn2" name="_ftnref2" title=""><span class=""><span class=""><span style="font-size: 12pt;">[2]</span></span></span></a> There are a number of variations on the theme of the Minute Paper, but Lang suggests using the last few minutes of class to have students write out the answers to two questions:</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">1. What was the most important thing that you learned today?</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Question 1 forces students to consider the information presented in the workshop, choose what they found to be most helpful to them and articulate what that was. This short reflection truly cements at least one point in the student's memory. The second question forces them to consider what they did not understand or something they still need to master.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">I am proud to report that my organization, The National Institute for Trial Advocacy, has flirted with the concept of an organized reflection period off and on for over ten years. I admit to abandoning it because of the natural skepticism of lawyers. One comment from a teaching colleague put me over the top in rejecting the idea of organized reflection. My teaching companion compared the process to the skits during <b><i>Saturday Night Live, </i></b>called <b><i>Deep Thoughts by Jack Handey</i></b>.<a href="file:///C:/Users/siu850484227/Downloads/2016%20How%20do%20you%20spend%20your%20last%205%20minutes%20of%20class%20time.doc#_ftn3" name="_ftnref3" title=""><span class=""><span class=""><span style="font-size: 12pt;">[3]</span></span></span></a> Admittedly, the sarcasm overwhelmed my own teaching instincts. I was wrong.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Under Lang's idea the One Minute Papers were kept by students as a personal journal of their learning. NITA asks participants to share this information. This is done in one of two ways. First, the papers are collected and the Program Director reviews them each day. This helps the PD confirm whether the teaching goals of the day have been met and provides information on what participants are struggling with - allowing faculty to do additional teaching on those specific points. The second option replaces the writing with oral comments and creates lists for all to share. I prefer the latter for these reasons. First, it presents reminders of multiple teaching points for everyone to consider. Second, much like the brainstorming process, one person's idea may spark additional ideas in others. This gives traction to lesser learning points that still may have great value. Third, by maintaining lists from each workshop or day you can building a valuable list for students to carry forward. This latter proves the point of a sum being greater than its parts.</span></div>
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<span style="font-family: "friz quadrata std" , sans-serif;">Sometimes, it helps to be reminded about great ideas. Reflection is undoubtedly one of the most important parts of experiential learning. Making it a part of class as one of our tools is a fabulous idea. I've seen it work, experienced its benefits as a student, and heartily recommend you consider adopting it in your classes - experiential or not.</span></div>
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<a href="file:///C:/Users/siu850484227/Downloads/2016%20How%20do%20you%20spend%20your%20last%205%20minutes%20of%20class%20time.doc#_ftnref1" name="_ftn1" title=""><sup><sup><span style="font-family: "times new roman" , serif; font-size: 12pt;">[1]</span></sup></sup></a><span style="font-family: "friz quadrata std" , sans-serif; font-size: 10pt;"> Kurt Lewin (1890 - 1947) was originally a Gestalt psychologist in Berlin. Lewin moved to the United States in and originated theoretical work on adult learning and group dynamics. Lewin is little read today because of his pseudo-mathematical style but is considered the grandfather of many ideas. The diagram at Appendix 2 is taken from "The Experiential Learning Cycle at <a href="http://www.dmu.ac.uk/~jamesa/learning/experien.htm">http://www.dmu.ac.uk/~jamesa/learning/experien.htm</a>.</span></div>
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<a href="file:///C:/Users/siu850484227/Downloads/2016%20How%20do%20you%20spend%20your%20last%205%20minutes%20of%20class%20time.doc#_ftnref3" name="_ftn3" title=""><sup><sup><span style="font-family: "times new roman" , serif; font-size: 12pt;">[3]</span></sup></sup></a> <span style="font-family: "friz quadrata std" , sans-serif; font-size: 10pt;">Between 1991 and 1998, Saturday Night Live included Deep Thoughts on the show as an interstitial segment between sketches. Introduced by Phil Hartman and read live by Handey (neither actually appeared on screen), the one-liners proved to be extremely popular. Hartman would intone "And now, Deep Thoughts, by Jack Handey...", and peaceful easy listening music would play while the screen showed soothing pastoral scenes, much like a New Age relaxation video. Handey would then read the Deep Thought as the text to it scrolled across the screen. They became an enduring feature of SNL, which often had multiple Thoughts in each episode, and made Handey a well-known name.</span></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com10tag:blogger.com,1999:blog-8797548749870864034.post-92076043190063304712016-01-14T01:01:00.000-06:002016-03-15T11:13:02.551-05:00Welcome to the Law School of the Future....<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">It is the first day of law school, and you are excited. You have completed your online preparatory work, and you think you are ready to begin this journey. You spend the morning processing through the expected administrative details, take the student oath of professional conduct and now you are going to your learning space. You call it yours because you have been told by student services that your working group will collectively use this space for all of your course work this year. Your section has 32 students in it, and you’ve been assigned to one of the three professors you designated based upon your projected career path as identified by the extensive conversations, interviews, and surveys conducted with students services. You have always dreamed about being a plaintiff lawyer, and you cannot wait to get started. You’ve heard, but you think it is just a rumor, that you may get your first case assignment today. There is no way you could possibly start law school with a client, even in a teaching environment. But who knows?</span><br />
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">When you get into your classroom you take a look around. There appear to be multiple collaborative work spaces, arranged in groupings of 8 students. The furniture is modular, and looks like it can be arranged in a variety of ways. For now there are four specific areas each with eight chairs around a series of tables that have been put together to create a space where each small group can see everyone else in the group. You notice that each set of tables seems to have a bank of displays on the wall near its location. You’ve heard about this, and apparently your school issued tablets will stream video, documents and screen shots directly to the displays - you look closer and you notice that your name is underneath one of the monitors and it is also built into the display of your smart desk, glowing just strongly enough that you can read it and take your seat.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">While waiting for your professor to arrive you pull up your personal database of online lectures covering the substantive law you are expected to develop competency in by the end of this semester. Your school believes in adult immersion training, and you know you will need these lectures to help you deal with the simulated and real world problems you will work on with your classmates and professor during this module. You are already thinking about the dreaded 1<span style="line-height: normal;"><sup>st</sup></span> year competency exam that you will have to take, but you aren’t really worried because they told you in student services that your school teaches the black letter law in a transparent fashion so that you can move on to the higher level learning functions associated with synthesis, application, and development of the law.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">While you are waiting for the professor you pull up your personalized online lecture series to check them out. You go through the names of the professors in your database and realize that some of your onsite professors have contributed to this resource, and you also recognize the name of several nationally recognized experts in various areas of the law. It looks like your educational experience will include input from the best and brightest!</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">You have been told that when the lectures are relevant they will go from a greyed out appearance to a clear picture - indicating that you should attend these lectures virtually during your own scheduled time. You also know you will have the ability to post questions concerning the materials, and that your school has provided you with a template of expected ways in which this substantive law is relevant to your future interests, to include admittance to the bar. You’ve also been told you won’t be able to conduct the assigned legal tasks without understanding and applying these subjects.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">You see the section on understanding the substantive law and applying it in a testing modality too. You’ve been told about this, and recognize it as one of the resources your school uses to maximize your potential. The way you understand it, this approach almost guarantees, knock on wood, passing the bar the first time through, and if you score high enough your state bar has waived additional testing on the core subjects when you sit for the bar. Apparently it is all tied in to a school database that tracks your substantive competency and ensures that you understand the subject. Your lessons will not advance until you complete the tasks successfully - it feels a lot like playing a game in an online multiverse, or so you’ve been told.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">You notice that the introduction to tort law is open and available, as well as the fundamentals of civil procedure. There is also a series on traumatic injuries and the psychological damage that may result. There are even some lectures about force, mass and acceleration. Your classmates trickle in and you close out the database, making a note to review the materials during your scheduled study time later that day.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">You and your classmates visit for few minutes and then the professor walks in. Roll is taken by scanning your thumbprint with your tablet. Once the roll is done the professor begins. The lights darken, and a recording of a tangled mass of metal appears on all of the display screens, followed by a 15 minute day in the life presentation of a quadriplegic man you soon learn is your client - <b><i>welcome to law school.</i></b></span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">This “day in the life” of a future law student serves as an excellent starting point to discuss how future law school experiences might be organized. It represents several ideas that are coming quickly due to economic pressure, changing accreditation standards, and market forces. They include:</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">1. Replacement of traditional substantive law lectures, and the professors who deliver them using the socratic method, with online resources, quizzes, and problems. The future focus will be on application and synthesis based upon modules or blocks of instruction designed to develop identified competencies.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">2. Embedding technology and using it to to transform every moment of the educational experience.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">3. The rise of a new class of professors who approach their craft holistically, teaching the law through application, problem solving, mentoring, and developing professional identity. It will be as much a coaching and supervisory experience as an educational one. Many of the concepts for adult education in use in industry, the military, and the business world will finally be applied across the board in law school.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">4. The development of deeper personal relationships between professors and students early in the law school experience, with a modular design focused on blocks of instruction and small course work from the very beginning. The use of online lectures will allow for this approach, and transform the educational experience in ways we do not yet fully understand.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">5. The ability for students to learn the law contextually from the very beginning.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">Now I realize that this example is scary to most professors, and that it forecasts tectonic upheaval in our profession. I would suggest respectfully that it is actually a rather tame look into the future, and that this is coming, either painfully, or intelligently, depending upon how we, the academics responsible for our current system, respond to challenges we now face.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif; font-size: large;">Let the discussion begin!</span></div>
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com8tag:blogger.com,1999:blog-8797548749870864034.post-365388244231692322016-01-12T22:11:00.001-06:002016-03-15T11:24:13.462-05:00A New Way to Crack an Egg<div>
One of the eggs in the law school basket that needs to be cracked in a different way is how to effectively teach legal writing beyond the basics that are ably covered in the required curriculum. I thought we might crack that egg together using a different model, one that builds upon the importance of professional identity as a key component of the process. Think of it as another way to put verbs into the sentences of our conversation. <span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">The idea for this course is one we have been kicking around at Stetson for awhile, and many of my thoughts about it come from conversations with several of my colleagues, particularly Associate Dean Vaughan, Prof. Jason Palmer, Prof. Chrissie Cerniglia-Brown and others. I think it fits our current discussion because it is a concrete example of how we might begin to reimagine the legal education experience in a way that considers professional identity and real world competencies at the core of the process.</span><br />
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<span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">A bit of history is in order. Most professors in law schools became professors because they excelled in their academic community while in law school, with many of them serving as a member of their respective law review. If you surveyed law professors, with the exception of those who teach primarily "skills" you would find a marked preference for the law review article, with many paens to its efficacy and outstanding ability to make a difference.</span></div>
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<span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">I must confess a dirty secret, I have written several law review articles, I even enjoyed the process at the time, but I did not do it to make a difference - I did it because it was required to get tenure, to show that I had the ability to think in those terms. They have value, as a academic exercise and as a contribution to the development of deep academic thought about the law. I would even say that everyone who wants to write a law review article should - but most students do not want to, and will never use that particular skill in the practice of law. Despite that fact, this academic focused writing endeavor is the primary vehicle chosen by law schools to teach upper level writing. </span></div>
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<span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">We do it not because the students need it, but because we law professors are comfortable with it and our facility with the law review article helped us be successful. Unfortunately if ever there was a time when we needed fewer law professors in training it is now. We have 200 law schools, and we won't have 200 law schools in a few years. We need lawyers trained in the skills that will help them make a difference for their clients, not pad their respective academic credentials, nascent though they may be. See </span><span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">https://bol.bna.com/former-brandeis-president-law-students-are-right-to-worry/.</span></div>
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<span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">Why don't we change the paradigm, and look instead at what our students actually need out of upper level writing development? This proposed course presupposes they have learned how to research, can make an effective appellate argument, and understand the citation monster. So what do they really need? I would put to you it is not to write a law review type article that will never be published. Let's look at a different alternative.</span></div>
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<span style="font-family: "helvetica neue light" , , "helvetica" , "arial" , sans-serif;">This proposed course would take a student through the life cycle of the types of documents an attorney might expect to be called upon to produce over the course of regular practice. Each of the documents in question would be driven by a simulated event that set the background for the need to write. Those events could include:</span></div>
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<span style="font-family: Helvetica Neue Light, HelveticaNeue-Light, helvetica, arial, sans-serif;">If you think for a moment, when we are done the students would have a competency across a wide variety of documents actually produced in the practice of law, and a portfolio of writing samples they could rely upon when interviewing. You can take this idea a step further and tether this approach to either an internship or clinic, putting the students in real world settings and then bringing them back to the classroom to produce the written work. If you did this you could take advantage of intercession programs (between semesters) to develop these writing skills.</span></div>
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<span style="font-family: Helvetica Neue Light, HelveticaNeue-Light, helvetica, arial, sans-serif;">Even more importantly, this gives us an excellent opportunity to create a real sense of professional identity. Since our identity is formed, in part, by what we do each day, this approach would help the students to make their professional road by walking while giving them a real world skill set. Each of the scenarios above would require them to consider both ethical and substantive legal issues, forcing them to truly deal with what it means to be a member of our profession. The value would be immense and immediate, and for the majority of law students much more useful.</span></div>
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<span style="font-family: Helvetica Neue Light, HelveticaNeue-Light, helvetica, arial, sans-serif;">Now I am not suggesting that this approach should supplant the law review article paradigm, merely that it should be given as an alternative. I would put to you that many law schools will not do so because of their secret fear that the seminar courses which normally produce law review articles might very well die on the vine if our students had viable practical alternatives. The thought process behind that fear, and the impact it has on our ability to provide a better legal education, is a subject for another post.</span></div>
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<span style="font-family: Helvetica Neue Light, HelveticaNeue-Light, helvetica, arial, sans-serif;">Till then,</span></div>
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com2tag:blogger.com,1999:blog-8797548749870864034.post-67327740220787859602016-01-10T22:18:00.001-06:002016-03-15T11:13:18.093-05:00Professionalism - First, Last, Always<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">So now that we have talked somewhat about the current state of legal education, how to begin to fix it? I would suggest that we should ground our law school (soon we’ll change the name to law center, but more on that later) of the 21<span style="line-height: normal;"><sup>st</sup></span> century in what makes law school different from other graduate programs - professional identity. Let me discuss briefly why professionalism is important before I explain how we should set about teaching it.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">The need for professional identity is a sine quo non for lawyers. We use professional identity to ensure a certain level of professionalism, civility, and more importantly, proper delivery of legal services. We also have a vested self interest as lawyers in the concept of self regulation of the profession, because otherwise we will concede control of the law to outside regulators. </span><br />
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">Now normally that would not be a big deal, particularly given the businessification of the practice of law, (a reality, regardless of any personal feelings you may have on the subject), but for the unique role lawyers play in a democratic society. We speak truth to power, and the law not only allows it, but requires it. Self regulation by the profession, the formation of professional identity, and the internalization of what it means to be a lawyer are the means by which we guarantee the continued rule of law. Our profession’s ability to stand apart from the machinery of government is what gives us the ability to stand up and say no, when everyone arounds us wants a yes - and are not really willing to hear another’s truth. It is the most important thing law schools teach, and the one done most inefficiently and ineffectively.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">The ABA standards require that students are taught the model rules of professional responsibility in a minimum 2 credit hour format. Now that two credits is part of the 88-90 credits normally required for graduation. Think about it for a minute, the ABA only requires that roughly 2 percent of a law student’s education address professional responsibility - yet we all know lawyers deal with issues of ethics and professionalism every day. There are a lot of reasons, most of them historical for this approach - but it is not enough, not even close. We have taught professional responsibility as though it were a Sunday School class, and our students have responded to that approach as one might expect - they get the message that this stuff can get you in trouble, but it doesn’t <i>“really”</i> matter, not like the substantive law. That is the wrong approach to developing a professional identity, but it is endemic.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">Law Schools can maximize the formation of a positive professional identity by structurally modifying the way in which professional responsibility, as well as professionalism, is taught. This change should have multiple components, to include:</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">1. Substantive law classes</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">2. Modeling appropriate behavior</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">3. Immersive professionalism discussions across the curriculum</span></div>
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<b><span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">1. Substantive Law Classes - Make it 4 credits</span></b></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">This is actually the easiest one to fix. Most law schools currently require a 3 credit course, usually taught in a modified socratic method by one professor in a traditional classroom environment. In our new school we will keep this course (to allow for diversity in delivery), but also offer an opportunity for the doctrinal class to instead be tethered with skills courses where professional responsibility issues often arise - client counseling, negotiations, and mediation. These skills course would revolve around the professional responsibility course, with the various skills problems confronted by the students designed to reflect the doctrinal rules as they are taught in the professional responsibility course. This creates a synergy that is otherwise absent. It would be a good beginning, but not enough.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">Most legal writing and substantive law courses in the first year of the curriculum, in fact most required courses, are 4 credits. Professional responsibility should be as well. I would take that one additional credit and make a separate course, one that allowed for the modeling of appropriate behavior, we could call it “Developing Your Professional Identity.” I would require it to be taught by senior members of the law faculty, preferably those in leadership positions, such as the dean of the law school. If not the dean, then a senior respected member who is known for having a developed a professional identity that has withstood the test of time. At my law school I could easily see several of our senior faculty teaching this course, and the students would be immeasurably better from spending quality time learning why and how their decisions about the lawyer they will be matter so much. This would allow students to experience mentoring at its best, and bring our most trusted and beloved professors forward into the light, where they belong. I must confess that is how I learned it at Notre Dame and though is has been over two decades those lessons are still fresh in my mind.</span></div>
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<b><span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">2. Modeling Appropriate Behavior</span></b></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">As mentioned above modeling would work as the basis for the 1 credit class added to the curriculum, but our school will go beyond this, making professionalism a core component of our orientation process, extracurricular activities, and on campus presentations. This would flow over into the school’s pro bono program, and eventually make its way into the very fabric of the institution, its alumni, and student body. Clients and the profession would both benefit in an astounding way. It would also mirror the actual way it works in the real world - we mentor, we model, we walk the walk, which allows us to talk the talk. This would serve the added benefit of exposing our students, in a controlled environment, to what they should expect in their internships, clinics, summer placements, and eventual first job - while also helping them to develop the skills necessary to maximize their success in these endeavors. When an institution loses sight of the core need to do the right thing when no one is looking it is in distress, internalizing these values would protect higher education in the legal arena while also growing good lawyers - a win win.</span></div>
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<b><span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">3. Immersive Professionalism Discussions Across the Curriculum</span></b></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">The substantive curriculum in our new law school will be arranged quite differently (more about that in a subsequent post), but regardless of the structure of our curriculum in the future, learning outcomes and competencies concerning professionalism must be built into every course. We all know that each component of the law has an ethical issue attached to it. Each of us have experienced ethical questions as part of a substantive law course - they should not only be answered, but prepositioned as additional components of the course of instruction. If we break down the silos of traditional legal education this will be easier to accomplish, but we can even do it now using our current structure. The ABAs recent focus on learning outcomes will assist us in convincing less forward leaning faculty on the efficacy of this approach as well. It does not require a lot of time, but the benefit is immense.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">If we truly want the profession of law to remain a profession we must substantively alter the way in which we teach it, support it, and live it. The richness of the conversations that would ensue, with the fabric of the law behind it all, would be tremendous boon for our students. Professional identify could then become one of the fundamental colors woven through the tapestry of the student’s law school experience, instead of a lovely, but nearly unnecessary fringe. Next time we’ll talk about how to arrange an appropriate curriculum for this new type of law school, and how changing it will transform the position of law schools within the legal community.</span></div>
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<span style="font-family: "helvetica neue" , "arial" , "helvetica" , sans-serif;">All the best,</span></div>
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-58040094215457998402016-01-07T00:05:00.000-06:002016-03-15T11:13:38.240-05:00A Moral Imperative - a Problem with Promise<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: "cochin"; font-size: large;">We have a </span><span style="font-family: "cochin"; font-size: large;">problem - legal education costs to much. Like most problems thought it comes with a promise, whoever is first to reimagine legal education successfully while making it financially viable will own the future - and the future is now.</span></div>
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<span style="font-size: large;">Depending upon the statistics you choose to quote, a law degree costs somewhere between roughly 84,000 dollars for a state school and 122,000 for a private school. See <a href="http://www.admissionsdean.com/paying_for_law_school/law-school-cost-calculator">http://www.admissionsdean.com/paying_for_law_school/law-school-cost-calculator</a> and <a href="http://www.forbes.com/sites/robertfarrington/2014/12/18/law-school-and-student-loan-debt-be-careful/">http://www.forbes.com/sites/robertfarrington/2014/12/18/law-school-and-student-loan-debt-be-careful/</a>. This figure, of course, does not include any debt incurred for undergraduate degrees or other advanced degrees. This fact alone, in conjunction with the multiple stressors experienced by the big firm market, has resulted in a new general belief - for many, law school is not worth the price of admission. Think about that for a moment, the world has fundamentally changed its perception of the value of a law degree over the last 4 years. This slide occurred quickly, and shows no signs of slowing down. Law schools are now experiencing market stressors for which the vast majority of law professors have no frame of reference. It is difficult to find a time in modern legal education, at least since the advent of the Langdelian method of instruction, to use as a guideline when dealing with what now confronts us all. </span><br />
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<span style="font-size: large;">Law professors, by their very nature, tend to be both risk adverse and insular - they don’t like change. They particularly do not like change when they have been the driving force in the known history of their institution. You cannot blame them for their reticence to consider the idea of transforming the legal education experience. Unfortunately any school that finds itself ranked below the top 50 in U.S. News and World Report is now spending a great deal of time working to “define” themselves so that they may maintain market share. Now market share is not an idea that law schools are comfortable with, but in the ever shrinking world of fewer students, lower budgets, and increased financial stressors on parent universities it is a dirty little reality that cannot be ignored.</span></div>
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<span style="font-size: large;">We law professors have a moral duty to our students, and one that we cannot pay short shrift to any longer. We must think in a practical and entrepreneurial fashion about the future structure of a legal education experience and we must move quickly to accomplish this change - or risk the loss of our institutions as we know them. I want to suggest today that we might be able, as an academy, to find some common values that should inform the entrepreneurial decisions we must make. Think of them as the best of what should be brought forward combined with the promise of the future. If we begin with a focus on what we value, and then structure our future programs around those values we have a chance to remain relevant, to assist in the rebirth of a valid legal educational experience. But we must do so soon.</span></div>
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<span style="font-size: large;">So where should those values come from? From both the academic and practical world. They must be values that exist in both places or they are not worth spending our limited resources on. So what would be on your list? Mine would include the following, and as many of you might expect knowing me, it has only three primary components at the meta level :</span></div>
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<span style="font-size: large;">1. Professional Identity and Personal Ethics</span></div>
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<span style="font-size: large;">2. Understanding the law</span></div>
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<span style="font-size: large;">These three considerations should permeate the curriculum, existing in every course, extracurricular activity or faculty service opportunity. If we were to use these three guiding concerns as an agreed upon starting point for reworking the law school experience we could protect the best parts of our scholarly heritage, reenergize our usefulness to the practicing bar, and become more connected to the legal world outside of the walls of our personal ivory towers. It would make for a very different educational experience, one with the potential to be truly immersive. It will also require a different type of law professor, a different administrative structure, and the support, real support, of both the ABA and the AALS if it were to stand a chance of success. </span></div>
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<span style="font-size: large;">The entire structure of law school should be reorganized around these three guiding principles. Doing this would transform the educational experience for students, and allow law professors to think anew, to learn again, to become students of the educational process, as opposed to overseers of a antiquated approach. The time is now to change, or run the risk of becoming irrelevant. Next time I will put forth some specific ideas about how a law school might structure the learning experience around these core values.</span></div>
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<span style="font-size: large;">All the best,</span></div>
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com12tag:blogger.com,1999:blog-8797548749870864034.post-73861212867613100052015-12-30T23:31:00.001-06:002016-03-21T17:14:50.188-05:00Law at the Crossroads - The Profession Embarks on a Hero’s Journey<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: inherit;">I have blogged about learning skills and their relationship to doctrine on multiple occasions, and will continue to do so when appropriate. Today, however, I am in a reflective mood because I was recently asked to give the keynote speech at our graduation celebration. Three years ago our current dean implemented a process where students select a professor to speak at the winter graduation celebration. My good friend Peter Lake was chosen by the students, but he could not do it because he was on a cruise ship with his wife. In yet another example of how much Peter is smarter than me, I was not conflicted out, and happened to be the student’s second choice.</span></div>
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<span style="font-family: inherit;">I found it very humbling to be in this position, but as I thought through the messages that I could share, I began to realize that the challenges I am facing right now as a member of the legal education world mirror, in many ways, the same challenges my students face as they become lawyers is a world that is changing more rapidly each day. I also came to realize that I must adopt the same attitude about the changes in my world that I want the students to have about the challenges they are getting ready to face. In a very real sense I became the student again, with this task as my teacher. </span><br />
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<span style="font-family: inherit;">I realized that I wanted them to understand it is always about the relationships we form - the human connection between us that defines the work of what it means to be a lawyer. This is a people business, and must remain so if it is to continue to guarantee the viability of the rule of law in the 21<span style="line-height: normal;"><sup>st</sup></span> century. Unfortunately people are often the first to suffer during times of change. I wanted each of them to believe that a focus on the people in their lives, personal and professional, will keep them on the path to both a successful and fulfilling career in the law - while also doing more than anything else to insure that the world inherited by the next generation is one where the rule of law still exists in a recognizable form. I believe deeply that we must have that same personal focus in legal education as well, it is actually a reflection of how I approach each day at work.</span></div>
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<span style="font-family: inherit;">We live in a time where transformation is now the norm, not the exception. Stability is a memory old folks have, and survival is always on the table. I have watched my law school colleagues struggle with this new reality, with all of the reactions one might expect, from outright denial to predicting the end of the world - along with everything in between. Turmoil threatening the core of an institution’s sense of self will bring out the best and worst in humans - each of us has had an opportunity to see it on full display over the last few years. I chose to see possibilities and opportunities while preparing for the wolf at the door, think of it as a type of realistic optimism. It has helped me to identify a people first attitude which has guided my leadership decisions, and it is the one I use every day. This focus on the human question has helped me successfully navigate a time of struggle, both morally and compassionately. It has also created conflict with others who are driven by different concerns, but that is the nature of what it means to advocate for something.</span></div>
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<span style="font-family: inherit;">It is a hard time to be a law professor, an even harder time to be on the staff at a law school, and a frightening time to consider becoming a lawyer. Everywhere one looks the process that has created lawyers for centuries is under attack. Some of those attacks are valid, others are not. Unfortunately this environment has created an opportunity for bullies and ambush predators to set about attacking the very fabric of what makes a legal education in the United States unique - the historical focus of an entire institution on the creation of the next generation of leaders for their world. </span></div>
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<span style="font-family: inherit;">At the same time, some of their complaints are valid, and law schools can feel like the best buggy whip making factory in the world, while the rest of the world abandons the horse in favor of the car. The real answer is of course more complex than most realize, and is very much a situationally dependent question, with the nature of the faculty, makeup of the student body, and commitment of the alumni all a part of the equation. Few law schools do the “vision thing” or “mission statement” well, and yet there is a need, as never before in the history of legal education, for brand specific identification and application of resources behind a sustainable model for legal education. </span></div>
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<span style="font-family: inherit;">Law schools at their best are a place of promise, where dreams are realized, futures are created, and professional lives begin. At their worst they become a factory where students serve as “income producing units” for the good of the University. We should all have, as a core value in academia, the commitment to an ideal that the University exists for the students, not the other way around. If not we are nothing more than another corporation running a business and making a profit off the very backs of the students we entice. Now there is nothing wrong with that, but only if you are up front about it. Fortunately that is not what most law schools sell, and it is also not the reality of most institutions, although one could successfully argue that it is fast become a more acceptable alternative in the wake of very real budgetary restrictions.</span></div>
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<span style="font-family: inherit;">Fear stalks the hallways of many law schools now. Professors hide behind their tenure, staff look for new jobs, and the students, our most precious resource, suffer. It is past time for this to stop. Past time for our profession to collectively stand up and confront as a group, these challenges. Many of us know what should be done, but we often remain silent and safe, after all, change is hard, and law schools must fundamentally change if they are to not only survive but flourish in the new realities of Higher Education and the Profession of Law. Our potential future as a profession is bright, and our promise immeasurable if we do so. Lawyers guarantee the rule of law, constrain the powerful, and create an environment where all of us have a chance to pursue life, liberty, and happiness. </span></div>
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<span style="font-family: inherit;">Historically law schools were designed to create critical thinkers. They need to be retooled to create critical thinkers who can use their superior analytical reasoning skills to speak on behalf of another - to advocate. To confront power when necessary, to stand when all others bend the knee, to matter in this world. While making this change law schools must also ensure that professional identity remains the core of the law school experience - otherwise we might as well be training business people and accountants.</span></div>
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<span style="font-family: inherit;">Unfortunately university administrations are not always willing to listen, faculty are terrified by change that upsets the balance of power within the institution, and the only thing worse than no plan is a good plan executed poorly. The realities of the Legal Profession, when considered in light of the long term changes to higher education, compel me to order my thoughts and present them in a place where they might be considered by others - hence this, and subsequent, blog posts. </span></div>
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<span style="font-family: inherit;">Much of Higher Education, by “worshiping at the altar of regressive analytics and best business practices” is losing the very essence of what it means to teach and mentor adults as they become not only the promise, but the once and future leaders of our world. We need to be smart about how we use data to run our schools, but we must never let data RUN the school. Lawyering is a people business, first, last and always. We cannot lose sight of our responsibilities to the profession, our alumni, and future students. It is imperative that we have an intelligent conversation about what law schools must become.</span></div>
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<span style="font-family: inherit;">These issues have come into sharper focus as I reflected on what the students graduating this fall have meant to me. How they have changed my life, and how, hopefully I have made an impact on their’s as well. I understand the relationship that grows between the student and the professor, and I have been privileged to walk in the shoes of Obi Wan Kenobi, Merlin, Gandalf - and every other mentor who has guarded the gates of transformation and guided young heroes as they begin their journey, their quest. I cherish that role. It is such a gift to be trusted by these students. It is also a responsibility, a calling for every professor and administrator in higher education to confront the darkness threatening this most precious creation of the Western World, the University.</span></div>
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<span style="font-family: inherit;">For it was the University, the place of Higher Education, that pulled us from the Darkness into the Light - making possible the flowering of the tree of liberty and the concept of the “rule of law.” Something which our law students have made their own internal value over the last three years. A large part of educational experience is the professor and student relationship - but it is not the only part. Administrators, staff, personnel - we all work together as best we can to create a place where the magic of learning and transformation occur. We are all, in a very real sense, together on a hero’s journey - defining our life in the way we treat one another and the way in which we care for the world. </span></div>
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<span style="font-family: inherit;">The structure and day to day working of any university has more of an impact on the learning experience than most folks realize. Professors cannot teach when the administrative functions of the school do not work. Fear freezes the ability to think, strangles the creative genius in each of us, and will, if we let it, make us subservient to its desires. We teach our students to use the law to deal with the fears of their clients. To advocate, in the original sense of the word, to speak for others.</span></div>
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<span style="font-family: inherit;">In subsequent posts I will begin to do as Dr. Phil suggests, “putting verbs in my sentences” as we share a conversation about how the 21<span style="line-height: normal;"><sup>st</sup></span> century law school can once again become a “shining light upon the hill.” Till then Happy Holidays and peace be on you this Holiday season.</span></div>
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<span style="font-family: inherit;">All the best,</span></div>
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<span style="font-family: inherit;">Charlie</span></div>
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com163tag:blogger.com,1999:blog-8797548749870864034.post-18135297717199846652015-12-27T21:34:00.000-06:002016-03-15T11:14:08.615-05:00A Report from the Pace sponsored Regional EATS Conference<div dir="ltr" style="text-align: left;" trbidi="on">
Dear Colleagues:<br />
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I trust this holiday season finds you well, and that you have have time to spend with loved ones as each of you celebrate the joy of family and the love that binds all of us who share in the human experience together. This time of year is a time of peace, and I hope that each of you is experiencing that peace this December.<br />
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I wanted to take a moment and report about the phenomenal job done by Lou Fasulo and his team at Pace during the Regional EATS conference this December. It was a tremendous success, with participants from as far away as California, Florida and Arkansas showing up in White Plains, New York for two days of teaching and sharing. This is the first Regional EATS program we have done, and it went so well we are already considering locations for next year's fall get together!<br />
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We discussed how to teach storytelling (the photos below were provided by Bob Altchiler from his great talk):<br />
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talked about running advocacy teams (Great session thanks to Adam and Jared):<br />
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focused on developing the sorts of curriculum that are most effective in Skills courses<br />
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and left with a promise to see each other again this May at Stetson for the National Conference.<br />
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I just wanted to personally thank Lou, his team at Pace, to include Michael Giordano, Keith Sullivan, Bob Altchiler, Keri Gould, Bobbi Sternheim, and all the others with too many vowels in their names for me to be able to spell properly! You were phenomenally gracious hosts and your hunger for learning and fellowship made this an awesome and humbling experience. Lou is one of those unique lawyers who understands that this is always a people first business. Everyone there was a joy to work with and we reconnected with old friends, and made some new ones too. Who could ask for more?<br />
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See you all in May (and on the competition trail)!<br />
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All the best,<br />
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Charlie<br />
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-18197287978506136582015-10-22T10:45:00.000-05:002015-10-22T10:45:16.019-05:00Stetson joins PACE Law School in sponsoring the first regional EATS conference.<div dir="ltr" style="text-align: left;" trbidi="on">
Dear Colleagues:<br />
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I wanted to let you know that we are expanding our EATS (Educating Advocates: Teaching Advocacy Skills) offerings this year, creating a regional conference designed to share advocacy teaching with those adjuncts and professionals in the Northeastern part of the United States.<br />
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Lou Fasulo and his wonderful team at Pace have graciously agreed to host a regional conference sponsored by Stetson and done the way we do things in our advocacy community - collaboratively.<br />
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I've inserted the flyer for the conference in this email and if you've got time we'd love to see you there!<br />
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All the best,<br />
<br />
Charlie<br />
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Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com1tag:blogger.com,1999:blog-8797548749870864034.post-73936990109811584212015-09-02T20:44:00.000-05:002015-09-02T20:52:49.598-05:00Ethics and Tribulations of a Young Lawyer: Sam Akhwale on Integrating Real-World Examples in Advocacy Ethics Training<b>Sam Akhwale is an Advocate of the High Court of Kenya with 17 years post-qualification experience. He teaches Trial Advocacy at the Kenya School of Law, the Bar School in Kenya. Before that he had worked at Private Law firms, with the Office of the Director of Public Prosecutions and with a Human Rights NGO. Sam is a gifted teacher and advocate. He brings a kind and gentle, yet disciplined, approach to advocacy teaching.</b><br />
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At the 2015 Trial Advocacy course for Kenyan lawyers hosted by the Mombasa Law Society at the Coastal city of Mombasa in Kenya, East Africa, among the items on schedule was a discussion on ethics. To set the discussion going, some hypothetical problem questions were posed to the participants in the training.<br />
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One of the questions went: "<i>You are a young advocate, and have been sent by the partner in the firm you work for, to travel to and file a motion in a court 150km away from your head office, for stay of execution of an award of damages against your client, pending appeal. You have travelled all that distance, then just before you file the motion papers in the registry, you notice the supporting affidavit drawn in the partner's name has not been signed by him. You call him and he tells you, "just sign it". What do you do?</i>".<br />
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What many in the training at Mombasa may not have known is that this is a real situation that I faced as a relatively new lawyer. I had just three years in private practice with a law firm in Eldoret, in the north western part of Kenya. Eldoret is famed for wheat farming and as the cradle of world famous athletes in long distance races. The firm I was working with mainly represented insurance companies in personal injury claims against companies insured by those insurance companies. Most of the injuries would arise either from road traffic accidents or in industries. Because the law firm was on the panel for the insurance company, they would be given a wide region of courts to cover to avoid instructing too many law firms. That meant that lawyers within that firm traveled quite extensively.</div>
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I recall one time I was to go to Kisii High Court, which was the regional court in South-Western Kenya, not far from the Kenya-Tanzania border. I had to file appeals against awards of damages arising from claims by passengers in a public transport bus, then attach the memorandum of appeal to a motion to be filed in another Magistrates court where the awards were made, then travel 70 kilometres to that Magistrates court to file motions for stay of execution pending appeal. So to make it from Eldoret to Kisii by public transport, I hired a hotel room in Eldoret and had to be up by 1am, to board a bus "Nya Ugenya" (literally mean, "Girl from Ugenya"), that would do the 260km from Eldoret through Kisumu to Kisii, and get there by 6am.The courts would open at 8am, for me to file the appeal, then travel onto Migori, 70 kilometres away, where the Magistrate's court was.</div>
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<tr><td class="tr-caption" style="text-align: center;">The towns on Akhwale's route are circled in red. The small town where he had to take the affidavit is marked with a green cross, just to the right of Kisumu on the map above.</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">A bus of the type that Akhwale traveled on for this case.</td></tr>
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So back to the affidavit that was not signed: This was at a time in Kenya when mobile phones were still very limited in circulation. I therefore went to a public call box, made a call to our office and was lucky to find my boss in the office. He did not seem as panicky as I was about the affidavit he had not signed; he just told me on phone, "just sign it", then he hung up. I was not any better off than before I had made the call. The other dilemma was that the Magistrate who was to have heard the motion was on leave and they were waiting for another Magistrate to come over to the station to mention the cases heard by her colleague. So I made a quick assessment and chose to take a matatu (a 14 seater public transport van) back to Kisumu, the third largest town in Kenya located on the shores of Lake Victoria which was 20 kilometres away. Good enough computers and printers were just becoming a common feature in our towns. I therefore went to a stationery services bureau and got the affidavit re-typed in my name, then signed my part and took it to an advocate in town to commission the affidavit. The cost of getting it commissioned of course ate into my travel allowance that I had taken for the trip but the allowance that remained was still enough for my meals and travel back to our head office. Because all this happened about 14 years ago, my memory has faded a little bit on how the case ended but what I am sure of is that I don't think our client's property was attached by an auctioneer so I must have succeeded in my motion.<br />
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Looking back at this experience in the light of the trial advocacy course we had in Mombasa, I find each and every experience an advocate goes through to be a useful and helpful source of examples that trainees, especially young ones, can draw from. Stories from one's early professional life enables trainees see that the advocate or trainer they see at the front of the class did not climb the tree from the top, but went through the normal and ordinary struggles that every young working professional went through. In fact, relating these stories years later can be done with a good helping of humour, because with hindsight, what at the time may have looked like the end of the world, ended up being as yet just another day in the life of a young advocate. In the course at Mombasa, we had among the trainees students from the University of Nairobi, who impressed us with the thorough study of the case file and the detailed ideas they came up with during the case analysis part of the course. To such young people, a snapshot of what to expect when they will begin working when they qualify as advocates, builds in them resilience and an eagerness not to fear the world of advocacy but face it with an aim of excelling .And so maybe at the next trial advocacy course in Mombasa or elsewhere in Kenya, we could consider having Kenyan advocates of over 10 years experience print and wear t-shirts with words detailing that they survived the most difficult experience in their early years of practice. Mine might read, "I survived an unsigned affidavit one hundred and fifty kilometres away from my head office"!</div>
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--<i>Sam Akhwale</i></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com4tag:blogger.com,1999:blog-8797548749870864034.post-87595983193422394182015-08-22T22:49:00.003-05:002015-08-23T20:41:32.297-05:00NITA Brings Back the Trial Skills for Legal Services Attorneys Course<div dir="ltr">
One of my favorite advocacy courses is NITA's Trial Skills for Legal Services Attorneys Course. The course is taught at NITA headquarters in Colorado. NITA fully funds the tuition and course expenses for approximately 48 attorneys from legal services agencies across the country. The attorneys (or their agencies) are responsible for their own transportation and lodging arrangements. The faculty all donate their time during the course. The latest iteration of this course took place in Boulder on August 11-14.<br />
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<tr><td class="tr-caption" style="text-align: center;">Obligatory faculty photograph at the August 11-14 2015 Trial Skills for Legal Services Attorneys Course.</td></tr>
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Because of funding limitations, NITA could not offer the course for the past four years. This year, however, the NITA Board of Trustees was able to fund the program. Pent-up demand for the course was so high that it completely filled within two days of opening. The Board funded a second offering of the course that will take place in September. I'm glad the Board brought this course back. NITA does a lot of good throughout the country, but it is at its best when it finds a way to help those attorneys who would not otherwise be able to afford the instruction.<br />
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There are three reasons this course is exceptional. First is Mark Caldwell, who is the most gifted trial course administrator I've ever worked with; any opportunity to work with him is a delight. Mark puts all of his heart and soul into planning these courses. Over the years, he has experimented with cutting-edge adult learning techniques in this course, knowing that he has a receptive audience and a willing faculty. </div>
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Second is the faculty team. Mark always assembles a gifted, eclectic, interesting, and <i>fun</i> group of faculty to teach this course. I learn something new about teaching and advocacy from my colleagues in every single session of this course. I've met some of my closest friends in the advocacy teaching world at this course. In fact, the genesis for this blog occurred during an informal lunch with a group of faculty members in Louisville, Colorado, several years ago. "Somebody should start a blog," we all agreed, and a week later, Hugh Selby, Charlie Rose and I launched The Advocacy Teaching Blog. </div>
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Third, and most important, is the students. Simply put, it's inspirational and humbling to work with them. They come to the course because they want to improve their ability to help others. Their work is often unheralded and often unappreciated, even by their clients, but they do battle every day in a system that is rigged to the disadvantage of their clients: the poor, the elderly, the disabled, and the infirm. During one of the plenary sessions in this year's course, one of the students shared why she decided to practice law. She told how as a young girl, she was impressed by an attorney's red Maserati and wads of cash. An instructor asked her what about her work made up for the Maserati and the cash, and she answered simply but powerfully: "I get to help people with their problems."</div>
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From this course, there were a few lessons learned that I'd like to share.</div>
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<u>Good Trial Advocacy Training Has a Normative Effect on Legal Systems</u>. One of the things that has struck me in my work with Justice Advocacy Africa is the sense of mission, the idea that advocacy training should not only improve the individual participant's skillset, but also help improve the system as a whole. In Botswana and Kenya, for example, it is not common for attorneys to give opening statements at trial. Attorneys and judges who've had advocacy skills training learn to appreciate the value of opening statements--even short opening statements in bench trials--and they start asking for permission to give them if they are advocates and expecting to hear them if they are judges. I was a bit surprised to hear that many American judges in the jurisdictions in which our students practice actively discourage, or at the very least do not expect, opening statements. So I thought it was interesting to hear Mark Caldwell give the same speech I heard Pepsi Thuto give in Botswana and Benjamin Njoroge give in Kenya about the transformational impact of opening statements on local practice. Mark encouraged the students to ask for the right to give opening statements, and even if permission was not granted, to at least briefly tell the judge what the case was about before calling the first witness. Mark told a great story about how a recent NITA short-course graduate persuaded a judge that opening statements were a good idea, even in child neglect cases. The attorney stood up in court and gave a very brief, thematic statement: "Your honor, this is a case about a mother's love. A mother's love for alcohol and drugs."</div>
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<u>Trial-Ready Advocates Get Better Deals for Their Clients</u>. Nancy Hathaway, a fellow faculty member in this course, is a supervising attorney in Massachusetts, specializing in the juvenile court system. With her permission, I share something she sent to the other faculty members at the conclusion of this course: </div>
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<i><span style="font-size: 12.8000001907349px;">So, I'm in supervision training in my office -- the public defender's office in Boston -- and the topic is in-service, routine trial skills training. In answer to the question, "Why focus on trial skills?", the training director said, "Because I know I have had clients who, despite being told that the decision whether to plea or try a case is theirs alone, despite having a viable defense, have pled guilty because they could see the fear in my eyes."</span><br style="font-size: 12.8000001907349px;" /><br style="font-size: 12.8000001907349px;" /><span style="font-size: 12.8000001907349px;">I found that incredibly moving. When we build lawyers' confidence in their ability to try a case, they convey that confidence to their clients. It gives their clients more options. That is an issue of equal justice for poor clients.</span><br style="font-size: 12.8000001907349px;" /><br style="font-size: 12.8000001907349px;" /><span style="font-size: 12.8000001907349px;">Thought you all would appreciate. </span></i></div>
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<br /><br />It can't be said any better than that.<br /><br /><u>Repetition Works</u>. Mark has been experimenting with allotted performance times in his courses, and one of his recent innovations is building sufficient time in each performance block for repeat performances. In nearly every session of this course, there was enough time for each student to perform twice. Often, the second performance would come after critique and video review. Sometimes, the repeat performance would occur with different instructors from the ones who gave the original critique. This is in contrast to the typical advocacy course in which the student performs, receives a critique, but then does not perform that skill again during the course. I would highly recommend finding a way for repeat performances. Perhaps Mark will write more on this for us in the future, but what I observed is that the quality of student performances improved dramatically, not only for each individual skill, but in the aggregate, throughout the week. I believe that the opportunity to correct a performance and apply the critique points and advice within a short time after the original performance helps improve the learning process considerably. <br /><br /><u>Flipping the Classroom Creates Additional Performance Time.</u> For this course, most of the substantive instruction came from professionally produced instruction videos that were posted to NITA's Studio 71. The students were assigned to watch these before attending the course and were reminded every night of which videos to watch that would give them the substantive instruction necessary for the next day's assignments. This frees time for live performances, critiques, video reviews, and repeat performances. It requires greater advance effort from the student, but the payoff is well worth the effort. The value of learning-by-doing programs, after all, comes not from the live lectures and faculty demonstrations, but rather from students practicing their skills in a live environment with expert critiques and commentary to help them improve.<br /><br />If you get the chance to teach in or attend one of NITA's public service courses, I highly recommend it. </div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com8tag:blogger.com,1999:blog-8797548749870864034.post-14383186255106656522015-08-20T10:18:00.001-05:002015-08-20T10:18:28.182-05:00Link to a Sobering Article on Race and Peremptory ChallengesA friend sent a link to an article that the New York Times recently published about the role of race in peremptory challenges by criminal prosecutors in jury voir dire. I've included the link in this blog post, and I highly recommend that you read the article. <a href="http://www.nytimes.com/2015/08/17/us/politics/exclusion-of-blacks-from-juries-raises-renewed-scrutiny.html?_r=1">http://www.nytimes.com/2015/08/17/us/politics/exclusion-of-blacks-from-juries-raises-renewed-scrutiny.html?_r=1</a><div>
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I'd be interested to know what opinions the readership of this blog have about this issue. Is the article correct? If so, what is the right solution? Should prosecutors be allowed peremptories at all? The article quotes a law professor as stating that prosecutors have abused their use of peremptory challenges and should no longer be allowed to use them.</div>
Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-24201853820358972802015-08-16T22:31:00.000-05:002015-08-16T22:31:03.077-05:00An Interview with Christine Kipsang: Attorney, Advocacy Teacher, and Aficionado of Ginger Masala TeaI met Christine Kipsang at a recent Justice Advocacy Africa trial advocacy training course in Mombasa, Kenya. Christine is in private practice, with chambers in the Social Security Building a few blocks from the court complex in Mombasa. She agreed to contribute to the blog in the form of an email interview.<div>
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<tr><td class="tr-caption" style="text-align: center;">Christine Kipsang is second from the left in this picture of some of the Kenyan faculty members in the recent JAA Mombasa trial advocacy course. From left to right, Lilian Oluoch-Wambi, Christine Kipsang, John Chigiti, Benjamin Njoroge.</td></tr>
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<a name='more'></a><br /><b>Tell us about the trial advocacy training in Mombasa</b>. The trial advocacy training in Mombasa began in August 2013. The plan is to hold it every year. Last year, however, it could not take place due to persistent travel advisory warnings advising Americans and other non-Africans not to travel to Kenya. At the time, Kenya was perceived as unsafe. The concern was that possible terror attacks could happen any time, especially in August, the anniversary month of the terrorist attack on the American embassy on 7th August 1998. This year's trial advocacy course coincidentally ended on 7th August 2015, the Memorial Day for the 1998 attack.<br /><br /><b>How did you become involved with this course as a faculty member?</b> After a meeting with the secretary general of the Mombasa Law Society, Benjamin Njoroge, at one of our governing council meetings, I decided I wanted to participate this year on the faculty. As time went by I thought about the commitments I had and I kept on wrestling in my mind how much sacrifice I had to make to be part of the faculty this year. I thought about the issue over a long time and when all plans had crystallised I thought of the huge benefits each one of us getting to the programme reaps and I decided to keep my word to Mr. Njoroge. [Interviewer note: Mrs. Kipsang was quite busy during this course, and every day at the end of the course, she returned to her chambers to meet with clients and work.]<br /><br /><b>Your faculty profile for the course begins with the words, "I am an adult female of sound mind."</b> How did you come up with that beginning to your profile? One day I realized while in court that I had not submitted my faculty profile. I then decided to write one using my iPhone as I waited on the honourable judge to start the proceedings which were to start at 9am and had been delayed for one hour. I decided to use the language, "I am an adult female of sound mind," because this is the same language you can use while writing a statutory declaration.<br /><br /><b>How did you feel about your fellow faculty members in the course?</b> The day before the course we had a teacher meeting. Upon looking at the profiles of my fellow faculty members I was amazed at the logistics to come up with such a superb team, and I knew it would be a great week for me. After the teacher training session each of us was required to interview another faculty member and briefly introduce them during the start of the training the next day. I was fortunate to be tasked to introduce Njoki Mboce, whom I had met in 2013. I had trained her as a student in 2013, and now she was the youngest member of our faculty. I was equally fortunate to have Chris Behan introduce me.<br /><br /><b>You became famous for your ginger masala tea during the course. How did that happen?</b> One memorable thing Chris Behan said during the introduction the next day was that I am good at making masala tea. From then you can imagine what happened . . . the participants and faculty expected me to advise the school's dining facility on how to make proper masala tea. I brought fresh ingredients and gave them specific instructions every day.<br /><br /><b>Will you share your ginger masala tea recipe?</b> The entire group of participants and faculty enjoyed masala tea with acacia tree honey every tea break. The ingredients and directions to make tea for four are as follows:<br /><br />Water<br /><br />Tea (Kenyan tea or black tea)<br /><br />Masala (ginger)<br /><br />Milk<br /><br />Honey (preferably Acacia honey from East Kenya).<br /><br />The formula for cooking is simple. Measure 3 cups of clean water. Pour it in a clean cooking pan. Light the fire. Put the cooking pan on the stove. Bring the water to boiling point. Add one teaspoonful of Kenyan tea leaves. Add the masala ginger (natural pieces not powder). Add two cups of milk.<br /><br />After 5 minutes, lower the heat and simmer for some time. Put off the fire. Sieve the tea. Serve in the tea cup. Sweeten it with honey.<br /><br /><b>Tell us about the student introductions.</b> The programme started with prayer, and I prayed for all us asking God to keep us well and grant us success in all days. After that, the President of the Mombasa Law Society, Eric Nyongesa Wafula, welcomed the students. The participants were 24 in number. We lined up in order from the youngest member of the group to the oldest, and we took turns introducing ourselves. It was amazing in the way each participant start to relax as they talked about themselves and sharing the personal achievements in their lives and their fears. I particularly remember Susan Fahringer, a partner at Perkins Coie in Seattle, giving us a serious statement to not allow our fears to stop us from living our dreams.<br /><br /><b>Tell us about the students. What were their backgrounds? Why were they taking the course?</b> We had 24 students on day one. I must stress the fact this is a five full day training programme themed under learning by doing throughout the programme. JAA sets strict ground rules in order to receive a certificate of course completion. For instance, students must attend every session in order to graduate. The graduation certificates are signed by the president of the Mombasa Law Society and also by Steve Fury, the president of Justice Advocacy Africa. We lost a few students after informing them of the ground rules. For instance, by the time we reached the first break, one participant realized that they could not give up a whole week and left the programme. Another participant decided to attend to a matter in her law firm and failed to return for the afternoon session. Although she came back a day later and participated fully in the course, she was unable to graduate and will have to repeat the course.<br /><br />The participants were in terms of three categories;<br /><br />Firstly,some participants were newly admitted to the bar and had received their practicing certificates through the Law Society of Kenya. They were also associates in law firms meaning their employers had suggested that they take the programme or on their own decided to pay for the programme.<br /><br />The second category of participants were the law students from University of Nairobi Mombasa (UON-M) campus. I recognized most of them having been a moot court judge in their various moot court sessions and competitions organized by UON-M and our local bar association. These law students were financially sponsored by practicing advocates in Mombasa. I must say these students were greatly enriched by the programme, and I am looking forward to the upcoming moot court competitions. I expect to see better preparations by the students in case analysis and overall articulation of the issues for determination.<br /><br />The third and last category is peculiar one and it involves one participant who failed to complete the programme and thus failed to graduate in the year 2013. The participant in his own words said he got sick on the last day and found himself in a Mombasa hospital. He was unable to graduate because he missed the last day. Because he wanted to set an example for other advocates in Mombasa, as well as reap the full benefits of the course, he decided to enroll and pay for the programme again this year in order to graduate and get a certificate. The interesting bit about this participant is that he was once a senior judicial officer and resigned to start a private law practice. He has practiced for more than 15 years. His presence encouraged the entire team since he clearly showed that it is important to show accountability and follow rules and law with integrity and humility<br /><br />I remember on the last day as he received his certificate the participants gave him a befitting praise. He asked the American faculty to inform Steve Fury that he kept his word and completed the program. He also said his parents told him good manners are repeated and it was good manners for him to come and repeat the programme and succeed. <br /><br /><b>From your perspective, what was the most successful aspect of the course? </b>The most successful aspect of the course was the change in the participants from the beginning to the end of the course. The first day, most of them had not read the case file at all. By going through the programme and learning by doing how to do case analysis in proper manner, the participants began to experience enlightenment. They realized how much they had learned. Some realized how their previous lack of knowledge about handling cases had done a disservice to their clients.<br /><br />By the day, the participants began to be moulded into real court room advocates. They gained confidence as the week continued. By the final day, each participant was able to prepare for and successfully try a case. I would therefore say the aspect of moulding the participant to hear, see, touch, and interact with the case file and receive faculty feedback without criticism in a training programme in a relaxed atmosphere makes this programme very successful . <br /><br /><b>In your view, what is the single most important skill for a trial attorney to develop?</b> In my view I would say many are called but few are chosen (theory/theme).<br /><br />The aspect which differentiates a good trial attorney is the skill of preparation. The skill requires one to look into the matter, analyse it in terms of good facts and bad facts and decide whether to take up the case or not. Analyze the aspect of time to be taken, the aspect of fees to be charged, or what amount of resources to be employed in a particular matter if done on pro bono basis. It also includes what kind of legal team to have in a particular case, what kind of court documents to prepare so as to avoid objections to procedures and jurisdiction challenges, what aspect of evidence is needed and how to analyze it before presentation, and what kind of witnesses to expect in a particular trial on both sides<br /><br />And much more because as you embark on preparations then the case file becomes clear to you. As an attorney we are called to represent our clients in courts, tribunals and other fora. The manner in which you prepare your matters elevates you to the level that you will be the chosen one every time a client wants to employ the services of an attorney who will not bungle their case.<br /><br />Thanks Chris for this interview I look forward to the next opportunity .<br /><br /> <br /></div>
Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com1tag:blogger.com,1999:blog-8797548749870864034.post-4752861254783588862015-08-11T01:18:00.002-05:002015-08-11T01:18:11.416-05:00Trial Advocacy by Distance Learning<div dir="ltr">
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<span style="color: black;"> </span><span style="color: black;"><b>Trial Advocacy by Distance Learning, or, Advocacy Adventures in Cyberspace: A Cautionary Tale</b></span></div>
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<span style="color: black;"><b>Introduction</b></span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<b style="color: black; line-height: 100%;">Distance Learning</b></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<b style="color: black; line-height: 100%;">Synchronous and Asynchronous Distance Learning</b></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">Regardless of whether distance education is delivered synchronously or asynchronously, students appreciate its convenience. </span><span style="line-height: 100%;">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.</span></div>
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<b style="color: black; line-height: 100%;">Law Schools and Distance Learning</b></div>
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<span style="color: black; line-height: 100%;">Because of the ABA limitations on distance learning courses,</span><a href="https://www.blogger.com/blogger.g?blogID=8797548749870864034#14f1a73365755c33_14ec8701d8039e9b_sdfootnote1sym" name="14f1a73365755c33_14ec8701d8039e9b_sdfootnote1anc" style="line-height: 100%;"><sup>1</sup></a><span style="color: black; line-height: 100%;"> 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.</span></div>
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<b style="color: black; line-height: 100%;">Using Technology to Enhance Live Advocacy Teaching</b></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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 </span><a href="http://www.stetson.edu/law/advocacy-resource-center/" style="line-height: 100%;" target="_blank"><span style="color: navy;"><span lang="zxx"><u>Stetson Advocacy Resource Center,</u></span></span></a><span style="color: black; line-height: 100%;"> </span><a href="http://www.nita.org/index.php?option=com_content&view=article&id=26&catid=15&tab=programs&list1=8" style="line-height: 100%;" target="_blank"><span style="color: navy;"><span lang="zxx"><u>NITA's Studio 71</u></span></span></a><span style="color: black; line-height: 100%;">, or the </span><a href="http://www.ggulitigation.com/" style="line-height: 100%;" target="_blank"><span style="color: navy;"><span lang="zxx"><u>Golden Gate University Litigation Center</u></span></span></a><span style="color: black; line-height: 100%;"> 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.</span></div>
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<span style="color: black; line-height: 100%;">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: </span><span style="color: black; line-height: 100%;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2013/02/courtroom-advocacy-for-beginnersshaping.html">http://advocacyteaching.blogspot.com/2013/02/courtroom-advocacy-for-beginnersshaping.html</a></u></span></span><span style="color: black; line-height: 100%;">; </span><span style="color: black; line-height: 100%;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2013/01/storytelling-again-great-storytelling.html">http://advocacyteaching.blogspot.com/2013/01/storytelling-again-great-storytelling.html</a></u></span></span><span style="color: black; line-height: 100%;">; </span><span style="color: black; line-height: 100%;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2012/04/technology-advocacy-drills-achieving.html">http://advocacyteaching.blogspot.com/2012/04/technology-advocacy-drills-achieving.html</a></u></span></span><span style="color: black; line-height: 100%;">; </span><span style="color: black; line-height: 100%;"><span lang="zxx"><u><a href="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</a></u></span></span><span style="color: black; line-height: 100%;">; </span><span style="color: black; line-height: 100%;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2011/01/future-of-advocacy-training-ipads-and.htm">http://advocacyteaching.blogspot.com/2011/01/future-of-advocacy-training-ipads-and.htm</a><a href="http://advocacyteaching.blogspot.com/2011/01/future-of-advocacy-training-ipads-and.html" target="_blank">l</a></u></span></span><span style="color: black; line-height: 100%;">.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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. </span><span style="color: black;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2013/08/video-review-gets-new-lease-on-life.html">http://advocacyteaching.blogspot.com/2013/08/video-review-gets-new-lease-on-life.html</a></u></span></span><span style="color: black; line-height: 100%;">. I wrote about using Acclaim for diagnostic trials. </span><span style="color: black;"><span lang="zxx"><u><a href="http://advocacyteaching.blogspot.com/2013/06/quick-update-on-diagnostic-trials-and.html#more">http://advocacyteaching.blogspot.com/2013/06/quick-update-on-diagnostic-trials-and.html#more</a></u></span></span><span style="color: black; line-height: 100%;">.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<span style="color: black; line-height: 100%;">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.</span></div>
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<b style="color: black; line-height: 100%;">My Experiment with a Distance-Learning Basic Trial Advocacy Course</b></div>
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<span style="color: black;"><i>Why I Tried It</i></span></div>
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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.</div>
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<i>Technology Used</i></div>
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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. </div>
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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. </div>
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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.</div>
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<i>Technology Pros and Cons</i></div>
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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.</div>
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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. </div>
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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. </div>
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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.</div>
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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.</div>
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<i>The Benefits of Offering a Distance-Learning Trial Advocacy Course</i></div>
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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.</div>
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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.</div>
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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.</div>
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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.</div>
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<i>The Drawbacks</i></div>
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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.</div>
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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.</div>
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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 <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597324">From Voyeur to Lawyer: Vicarious Learning and the Transformational Advocacy Critique</a>. Suffice it to say that not a single one of these benefits occurs in a course where most of the feedback occurs asynchronously. </div>
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<i>Would I Do It Again?</i></div>
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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.</div>
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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). </div>
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<b>Conclusion</b></div>
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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.</div>
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<a href="https://www.blogger.com/blogger.g?blogID=8797548749870864034#14f1a73365755c33_14ec8701d8039e9b_sdfootnote1anc" name="14f1a73365755c33_14ec8701d8039e9b_sdfootnote1sym">1</a><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US">ABA 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. </span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US"><i>See </i></span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US">ABA Standard 306, </span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US"><i>available at</i></span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US"> </span></span></span></span><a href="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" target="_blank"><span style="color: navy;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="zxx"><u>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</u></span></span></span></span></a><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US">. 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. </span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US"><i>See </i></span></span></span></span><span style="color: black;"><span style="font-family: Liberation Serif, serif;"><span style="font-size: 10pt;"><span lang="en-US">ABA Standard 306 (2013-2014 version), available at the same hyperlink as above.</span></span></span></span></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com4tag:blogger.com,1999:blog-8797548749870864034.post-878765695430919172015-08-07T18:39:00.001-05:002015-08-14T07:17:02.873-05:00Teaching Trial Advocacy in Africa: The Magic of Mombasa<div class="separator" style="clear: both; text-align: center;">
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As I write this, I am sitting in a room at the Royal Court Hotel in Mombasa, Kenya, unwinding from the 2015 Justice Advocacy Africa/Mombasa Law Society Trial Advocacy Training. It was a busy week, but a wonderful one. As always when I come to the end of a short, intensive trial advocacy course, I find myself experiencing a combination of physical exhaustion from the labors and revelry of the week, and mental rejuvenation from the chance to work with a group of gifted colleagues and students.</div>
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<tr><td class="tr-caption" style="text-align: center;">Students and faculty of the 2015 Trial Advocacy Training Course, jointly sponsored by Justice Advocacy Africa and the Mombasa Law Society. This picture was taken in the moot court room of the University of Nairobi School of Law, Mombasa campus.</td></tr>
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Today began with our final trials in the classrooms and moot court room of the University of Nairobi School of Law-Mombasa Campus. Using a case file they had received just five days earlier, the students tried a matrimonial property case in which the petitioner sought to have the court declare that she was married under tribal customary law to the respondent and was entitled to a share of the farm from which he was trying to evict her. The purpose of the eviction was so he could live there undisturbed with his church-wed wife, a woman twenty years his junior. The case featured a plethora of fun facts, word-play (for instance, the trophy wife's last name was Gachungwa, local slang closely corresponding to "sweet young thing"), and interesting opportunities for creative advocacy.</div>
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<tr><td class="tr-caption" style="text-align: center;">George Mwaura cross-examines Kelvin Asige during the final trial of the course.</td></tr>
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The day ended with a closing social on the Indian Ocean beach with the faculty and students. We sat on a terrace at an outdoor restaurant, laughing and talking as a gentle breeze kept us cool and comfortable. As a group, we cavorted barefoot through the sand, dipped our feet in the ocean, and posed for photographs as the sun set behind us. We ate thin-crust Italian pizza cooked on a wood-fired grill and finished it off with ice cream made fresh on the premises. When it was time to leave, we all hugged each other and promised to send pictures and stay in touch. It would have been difficult to say goodbye, were I not planning to come back and work with them again.</div>
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<tr><td class="tr-caption" style="text-align: center;">A group engaged in conversation at the final social.</td></tr>
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This was my first visit to Mombasa, a city of about 1.2 million on the southeastern coast of Kenya. Much of the city is actually located on an island not far off the mainland. Because of its location on the Indian Ocean, the city is a melting pot of different cultures, ethnic groups, and religions. Within just a few blocks of the university, there were Christian churches, mosques, and Hindu temples. Walking along the streets, I saw a cultural smorgasbord of people: Westernized teenagers who would not have looked out of place in any American city, men dressed in Muslim robes and skullcaps, women wearing hijab scarves walking alongside women wearing business suits and heels, men in colorful African shirts and men with collared shirts and ties. Street vendors and restaurants sold food of many ethnic varieties, with tantalizing odors wafting from outdoor grills or kitchen doors. Just outside our hotel, for example, is the Kulthum Barbecue, where cooks labor all day and well into the night cooking savory meats on charcoal grills.</div>
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Especially in the evenings, I found the city enchanting, like something out of <i>The Thousand and One Nights</i> or a book of African folktales. Or both. And indeed, at dinner nearly every night, usually right after the sun had slipped beneath the horizon, our Kenyan companions regaled us with stories of magic cats, spells against infidelity, corpses refusing to be buried, mysterious midnight runners, and so on. Our hosts were marvelous storytellers. I have not met their equals.</div>
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<tr><td class="tr-caption" style="text-align: center;">The stern of a dhow (Indian Ocean fishing and trading vessel). </td></tr>
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My faculty colleagues were marvelous. I had worked with one faculty member before, John Chigiti, a prominent human rights attorney in Nairobi, but this was my first time (and hopefully not the last) working with a new group of colleagues. Most of our faculty were Kenyans who had received faculty training through Justice Advocacy Africa and the Kenya School of Law in Nairobi: Samuel Akhwale, Christine Kipsang, Rose Mbanya, Njoki Mboce, Benjamin Njoroge, and Lilian Oluoch-Wambi. Without exception they were superb advocacy trainers: dedicated, prepared, caring, and creative. There were also three Americans other than myself: Susan Fahringer and Harry Schneider, Jr., both partners at Perkins-Coie in Seattle, and Jeff Tilden, a partner at Gordon Tilden Thomas & Cordell in Seattle. Benjamin Njoroge and Harry Schneider worked together to manage the course. Benjamin was a paragon of efficiency who not only kept the trains running on time, but got them all to their destinations early.</div>
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<tr><td class="tr-caption" style="text-align: center;">Liliane, Christine, John, and Benjamin, faculty members from Kenya.</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">Sam Akhwane demonstrating a summation (closing argument).</td></tr>
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<tr><td class="tr-caption" style="text-align: center;">Christine and Rose co-teaching a plenary session.<br />
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<tr><td class="tr-caption" style="text-align: center;">Susan, Chris, and Njoki.<br />
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<tr><td class="tr-caption" style="text-align: center;">Harry, Jeff, and Eric Nyongesa Wafula. Eric, the president of the Mombasa Law Society, was a gracious host throughout the course.</td></tr>
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The students were wonderful. The Mombasa Law Society opened the course to law students, new attorneys, and experienced advocates. I'm not sure the various combinations of age and experience would have worked for an intensive advocacy course in most places, but here the differences presented no barriers. Several of the younger participants told us they had felt trepidation about being treated dismissively by their seniors as having nothing to contribute, but had been pleasantly surprised by the inclusiveness, cooperation, and respect they experienced. Some of the more senior attorneys said they had wondered what the course might have to offer them after several years in practice, but had felt their skills honed and sharpened as they tried the suggestions given to them by faculty members. Some faculty members were quite a bit younger than the students. One of our students, for instance, was a law professor at UON-Mombasa and had taught one of the course faculty members in law school a few years earlier.</div>
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This culture of mutual respect and willingness to try new things was no accident. It was deliberately cultivated by the course organizers. During our faculty meetings, I was impressed by the observations our Kenyan colleagues made about how to critique senior students without embarrassing them and how to critique less experienced students without discouraging them. </div>
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JAA has adopted a critiquing methodology that begins with the identification of something the advocate did well. Only then does the instructor begin discussing areas for improvement. This method runs counter to the way most of us have been trained, but it works. I've taught in two JAA courses (Botswana and Mombasa) and have never experienced or seen student "pushback" in response to critiques. In American trial advocacy courses, such a thing is practically unheard of. While it may be true that African students are more deferential to teachers than their American counterparts, I think the culture of respect from teacher to student is worthy of emulation. When I think of my own advocacy teaching disasters throughout the years, and there have been many, most could have been avoided had I shown more deference and respect to students. </div>
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As always when I teach, I learned a few things that I want to take home and incorporate into my own classes. Here are some of them.</div>
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<span style="font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u>Have More Fun</u>. Every day, as a group, we did something fun in class. Christine Kipsang, a Mombasa attorney on our faculty, was particularly good at coming up with playful warm-up exercises for everyone at the beginning of plenary sessions. I cannot possibly duplicate the success of her immortal song-and-dance number with an imaginary ball: "I have a ball. I put it here (pantomiming putting the ball on various locations on the body such as the head, shoulders, hips, stomach, and back). I shake it. I shake it." It took me a couple of times to realize the "it" was not the ball. Jeff Tilden gave all the students plastic rings with battery-powered gems that lit up in various colors. Students wore them all week long. When Benjamin Njoroge handed out graduation certificates to the students, he required each of them to demonstrate a dance move on their way to receive the certificates. The point is that everyone, even adults, likes to have fun while learning. When learning becomes deadly serious, it becomes deadly dull, and less of it occurs.</div>
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<span style="font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u>Critique with Compliments</u>. I've already discussed this, but I'll mention it again, because I think it's that important. A compliment on a skill well-performed or a weakness overcome sets the stage for growth much differently than simply identifying a mistake and prescribing a solution. The key is sincerity, though. The compliment has to be sincere, otherwise it is simply an artifice.</div>
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<span style="font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u>Include Everyone</u>. In this course, every faculty member kept busy conducting critiques in the classroom, but beyond that, we all had responsibilities to give short lectures or demonstrations in the plenary sessions. Every one of us had a different teaching or advocacy style, and I learned something new from every single presentation. I was then able to refer to my colleagues' plenary session work in the breakout sessions. I first learned this principle from Jim Seckinger in his intensive courses at Notre Dame. <u>Everyone</u> in his courses participates in the plenary sessions, and with the all-star cast of worldwide litigation experts he brings to these courses, you'd better come prepared. Over the years, however, I've taught in a number of courses in which there seemed to be two echelons of faculty: the stars who were called upon to shine in plenary sessions, and the worker bees who toiled with little fanfare in the breakout rooms. My resolution for the coming school year in my trial advocacy course is to involve all of my adjunct faculty members in the plenary lectures throughout the semester. I think the course will be the better for it.</div>
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<span style="font-family: Symbol;">·<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u>The Pantomime Trial Rehearsal</u>. Sam Akhwane introduced one of the best innovations I've seen in a basic trial advocacy course. Realizing that some of our students had never seen a trial before and didn't know in what order to proceed, he improvised a short walk-through that helped everyone understand exactly what to do. He called up the group of students who were participating in the first trial. He placed the petitioner and witnesses on one side of the room and the respondent and witnesses on the other. He announced opening statements and brought the petitioner's counsel forward to pantomime a brief (10 sec) opening statement, followed by the respondent's counsel. He then put witness one in the witness stand and brought the petitioner's counsel forward to pantomime a brief direct examination, followed by the respondent's counsel pantomiming a cross examination. And so on through to the end of the trial. In less than 5 minutes, he had walked a group of students through a trial, effectively demonstrating to them where to go, what to do, and the proper order of things. I thought it was brilliant.</div>
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I've been writing for awhile now, and it's getting late, so I will close this blog post by thanking Justice Advocacy Africa, the Mombasa Law Society, the UON-M School of Law, my colleagues on the faculty, and most of all, our wonderful students, for the opportunity to come here and participate in this course.</div>
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<i>--Chris Behan</i></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com2tag:blogger.com,1999:blog-8797548749870864034.post-71570463572032223252015-07-29T09:55:00.000-05:002015-07-29T09:55:47.973-05:00Stetson Advocacy Training at Oxford, Summer 2015<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-family: Helvetica;"><span style="font-size: 12px;">The following post is a guest blog post by Lou Fasulo, the Director of Advocacy Programs at Pace Law</span></span><br />
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<span style="font-family: Helvetica; font-size: 12px;">Oxford is a game changer in a big way. </span><br />
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<span style="font-family: Helvetica; font-size: 12px;">This past week I was honored with the opportunity to participate in an incredible Advocacy Program run by Stetson Law School and Charlie Rose and hosted at St. Hughes College Oxford University. The School and Principal could not have been more hospitable to us. The program of over 40 law students from various law schools from around the world set a new plateau for me. The rich curriculum on Advocacy, a quick study of comparative system and the backdrop of this wonderful city provided students with an awesome learning experience. I have never seen such an eager group of students so engaged. The students embraced the challenge of the intensive advocacy training with eagerness and a tremendous amount of energy. I can't wait for their final trials!</span><br />
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<span style="font-family: Helvetica; font-size: 12px;">The highlight was the quality of the select group of faculty I shared the experience with. Each bringing experience ,energy and sense of team work to the Program. There is a reason Stetsons reputation as a leader in Advocacy Is what it is. The team led by Charlie Rose moved the students through their journey with incredible proficiency and enthusiasm. Setting the bar high for the students while providing one on one mentoring to guide them through the week Charlie along with Gillian, Michelle, Carlos, Lee, Kandace, and me.(AJ followed up after I left, sorry we did not get to collaborate this time) worked tirelessly to prepare the students. I was surrounded by a great mix of Advocacy teachers doing what each of us does every day but in a welcoming collaborative way.</span><br />
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<span style="font-family: Helvetica; font-size: 12px;">If I sound excited I am. I am looking forward to returning to New York and have a group of my students at Pace take advantage of the program in 2016. You should encourage your students as well. The experience and the friendships made at Stetson in Oxford are truly as Charlie says transformative. Can't wait til next year!! </span><br style="font-family: Helvetica; font-size: 12px;" /><br style="font-family: Helvetica; font-size: 12px;" /><span style="font-family: Helvetica; font-size: 12px;">Very truly yours, </span><br style="font-family: Helvetica; font-size: 12px;" /><br style="font-family: Helvetica; font-size: 12px;" /><span style="font-family: Helvetica; font-size: 12px;">Louis V. Fasulo Esq.</span><br style="font-family: Helvetica; font-size: 12px;" /><span style="font-family: Helvetica; font-size: 12px;">Fasulo, Braverman and DiMaggio/ Director of Advocacy Programs Pace Law</span><br style="font-family: Helvetica; font-size: 12px;" /></div>
Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com1tag:blogger.com,1999:blog-8797548749870864034.post-54457939217166076512015-07-17T05:50:00.000-05:002015-07-17T05:50:48.782-05:00Training Irish Advocates - A Purpose, a Pint, and a Promise<div dir="ltr" style="text-align: left;" trbidi="on">
Greetings from the Emerald Isle!<br />
For the last two days an intrepid group of trainers from Stetson University, in collaboration with our good friends at University College Dublin, have been engaging in a two day advocacy workshop teaching persuasive storytelling, direct examination, cross examination, and closing arguments.<br />
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Our crew of trainers has included Prof. Michele Joiner, Prof. Kandice Horsey, Associate Dean Stephanie Vaughan, Ms. Erika McArdle (formerly Wilson), Ms. Gillian More, and Mr. Patrick McArdle - I think I may have been there as well!<br />
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We have been blessed to return to University College, Dublin for a second year to share some thoughts and techniques about trial advocacy and the art of persuasion. Our colleagues at UCD have welcomed us with open arms and made our trip a true joy. Over 84 lawyers signed up for our training and it has been a jam packed experience. I've included links to the program we presented and the case file we used if you are interested in perusing them.<br />
<a href="https://www.dropbox.com/s/via3jrkrlhq7aa2/TT%20v%204GGE%20%28UK%29.pdf?dl=0" target="_blank"><span style="color: blue;">TTV v. 4GGE Case File (UK)</span></a><br />
<a href="https://www.dropbox.com/s/wram0mpxfurhxj3/UCD%20-%20Ireland%20Advocacy%20Training%202015.pdf?dl=0" target="_blank">Ireland 2015 - Advocacy Training Program</a><br />
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We also supported our training with supplemental materials to assist our students in developing their advocacy skills. If you are interested in seeing how we went about doing so take a look at the following links:</div>
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<a href="http://www.youtube.com/TRIALADVOCACY" target="_blank">Trial Advocacy Channel - Youtube</a></div>
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<a href="http://www.stetson.edu/law/advocacy-resource-center/" target="_blank"><span style="color: blue;">Stetson Advocacy Resource Center</span></a></div>
Not only have our hosts been most gracious, but the students are engaged, attentive and inquisitive. Their thirst for an advocacy experience and commitment to increasing their own individual skills is an energizing thing to see. Our discussions have been far ranging, our demonstrations most adept, and the small group sessions (some of which are still going on as I write this) are fine examples of collaborative adult learning at its best.<br />
Stetson programs are designed to share our thoughts about what makes for a superior advocacy learning experience in a collaborative fashion where we learn as much as we teach. That has definitely been the case here in Ireland. When we leave tomorrow to begin our summer comparative advocacy course in <a href="http://www.stetson.edu/law/studyabroad/oxford/" target="_blank"><span style="color: blue;">Oxford</span></a> I will take with me the energy and graciousness of our students here, as well as a commitment to continue teaching advocacy whenever and wherever we have a chance to do so. It is in those moments when a student gets it that we find ourselves growing as teachers of advocacy. There have been many such moments here over the last two days.<br />
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Programs such as this are not possible with the support of the administration of the law school, and I wish to thank Dean Pietruszkiewicz for supporting our efforts in bringing Advocacy teaching overseas. I would also like to personally thank <b>J.R. Swanegan</b>, the director of our International Programs at Stetson. J.R. is a rockstar who works collaboratively with anyone who comes into his office with a good idea. If you run an advocacy program at your university and are thinking about these types of endeavors find the international program director and take them to lunch - if you have J.R. magic will ensue.<br />
At Stetson we believe that collaborative sharing across disciplines, platforms, and even cultures, is the hallmark of superior approach to teaching and development. This allows us to find a source of energy and excitement in hard work, letting us rest "good tired" as Harry Chapin would say, at the end of the day - because we have fought our battles, for the things in which we believe, in the way that we believe - that is a day when you wind up "good tired."<br />
I will be blogging from Oxford next week, filling you in on our comparative advocacy course and the impact that such premiere instructors as Joshua Karton, Gillian More, Kandice Horsey, Michele Joiner, Lee Coppock, Lou Fasulo, Carlos Concepcion, A.J. Belido de Luna and yours truly have on the impressionable young minds waiting for the Stetson advocacy experience.<br />
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All the best,<br />
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CR</div>
Charlie Rosehttp://www.blogger.com/profile/03413140034533721652noreply@blogger.com2tag:blogger.com,1999:blog-8797548749870864034.post-10291427437151276992015-07-08T16:47:00.000-05:002015-07-08T16:47:26.952-05:00Back at the Coal Face: Selby on Returning to Practice from Academia<div dir="ltr">
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When Behan, Rose and Selby set up this blog we were all practitioners turned academics. Taking practice into the Academy seemed like a good idea. It is that, though funding problems for schools and their students, on line teaching and learning, and the ever present cry to 'do more with less', thwart the ambitions to adequately prepare today's students for tomorrow's practice.</div>
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Some 18 months ago Selby quit his tenured position and headed back to practice, about a quarter century after he'd left it. Much has changed but the fundamentals of being persuasive, though brightened by the micro chip and touch screens, are as important and as overlooked as always.</div>
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The order of what follows reflects the significance of the issue to Selby's practice rebirthing. Readers should impose their own order upon the material, reflecting upon their experiences.</div>
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<i><b>Strategy</b></i> - the skill of making a choice about what path to follow, with what resources, and how best to deploy them- is so often missing from the court room. Gathering the evidence, finding the law is not strategy. Those are the supply tasks that precede the questions: What can be done? What will be done? – a 'why' question; When will it done? – a matter of adroit timing. How will be it done? – a response to the atmospherics.</div>
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<i><b>Handling witnesses and opposing lawyers</b></i> – I'm predisposed to giving anyone the benefit of the doubt once. Once that benefit has been 'used up' then I progress to a detached firmness, followed by a ruthless streak behind an impassive mien. An example – an insufficiently experienced prosecutor who likes to win at all costs slips up. We (client, instructing lawyer and I) take advantage – something we would not have done if she'd behaved professionally. I confess that we more than take advantage, but I do it with a smile.</div>
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<i><b>Handling judges</b></i> – it's impossible to fully grasp the advantage of being the same age cohort as the judge until that time arrives. It's so much easier to distill the real wisdom from rubbish dressed up in the trappings of power. Some things though are timeless: be seen and heard to be competent (as that is so welcome on the bench); be efficient in questioning and submission; be polite – even to those who don't deserve it; and, try to turn the judicial quirk to an advantage.</div>
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<i><b>Flexibility</b></i> – the written list of questions (each and every one), the scripted opening or closing address, oh how I welcome that in my opponent. Such people are unable to respond to the unexpected. Recently I watched a prosecutor's closing address to the jury. So boring. I watched the jurors looking all over the place. The prosecutor saw only his notes. I went out for coffee and to answer some emails. I came back. Still boring, some jurors sleeping. He stopped at last. The defence rose from the other end of the bar table. He had the interest of all jurors before he reached the lectern in front of the jury rail. His 'notes' were a few dot points. He engaged his audience, all the time. The jury quickly acquitted his </div>
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To those who are note bound with their questions remember just this: most of the 'fuel' for your next question is in the answer just given. Hence you cannot know your next question until you have processed the answer to which you should have been paying close attention. </div>
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<i><b>Think laterally</b></i> – there's often an angle that hasn't been seen by others. Stand back from the 'story' and look at it from a range of standpoints. Always give your clients and their witnesses encouragement to do the same. So often someone makes an 'off the cuff' comment that shines a light on something that was previously unseen. </div>
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When a client has supporters put them to useful work. Make them valued members of the team.</div>
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<i><b>Be a good public loser</b></i> – it's an adversarial system so you win some, you lose some. Be pleasant to your winning opponent, be gracious to the judge, debrief you client without rancor, and then go to the gym to sweat all the bile. That way your family are spared (some of, most of, all of) your resentments. Learn from every loss, just as you should from every win. </div>
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<i><b>Keep perspective</b></i> – it's important to the client but it's one small case in a huge system. Even if the media seems interested that is so transient . Lose a sense of objective perspective and you can adversely affect how you are seen in future cases. </div>
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Hugh Selby © July 2015 </div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-24983967121474871862015-05-28T14:15:00.003-05:002015-05-28T14:15:47.642-05:00Turning the Tables: Advocacy Students Reflect on Serving as Witnesses and JurorsThe last assignment of every semester in my basic trial advocacy course is a self-analysis memorandum in which the students analyze their performances in the final jury trial of the semester and reflect on their growth throughout the semester. I always enjoy reading these assignments. For my purposes, they are superior to the course evaluation survey instrument the law school uses. When I read what the students have to say about their own personal experiences during the semester, I learn how well they understood the pedagogical objectives of the course, what lessons they learned as advocates, and how they plan to continue improving throughout their careers.<a name='more'></a><div>
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For several years, I've assigned my students to serve as witnesses in each other's final trials, and I have required them to fill out a section in the self-analysis memorandum on their experience as witnesses. Many students have commented on the resentment they felt towards advocates who bullied them, the frustration they felt on the receiving end of a poorly phrased question, their nervousness because they didn't want to let their attorney down, and so forth. As a result of this, they've gained invaluable empathy for their future trial witnesses. </div>
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This year, I tried something new. Instead of assigning the students to serve as witnesses in each other's final trials, I made the advocates responsible for finding their own witnesses, and I assigned the students to serve as <i>juror</i><i>s</i> for their classmates' trials. In order to make this work, I used two case files for the final trials, so students would not serve as jurors in cases about which they already had extensive knowledge.</div>
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Serving as jurors seemed to be even more valuable for the students than serving as witnesses. Without the pressure of trying to remember and play a role, they could watch the trials as disinterested observers who, nonetheless, had an important role to play in the proceedings. Because they knew nothing about the cases, they had to rely solely on what the advocates presented in order to figure out the story and make sound decisions. Many of them commented about how different the trial experience is for the jurors than for the advocates. Their thoughts and insights included frustration with choices attorneys made about what information to introduce, emphasize, or ignore; admiration for attorneys who were well-prepared and who treated witnesses, the judge, and opposing counsel with respect; surprise at the impact on a jury of objections and responses; the importance of cohesive stories, compelling themes, and comprehensive case theories; and above all, how closely the jurors scrutinized everything the attorneys did and said. They developed empathy for their future jurors.</div>
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We also brought jurors in who weren't part of the class at all, many of them regular community members. My colleague Tom Margolis, who teaches one of my trial advocacy lab sections, developed an evaluation questionnaire for all of the jurors--whether class members or lay jurors--to help guide post-trial discussions and critiques about the effectiveness of the advocates. This was a useful exercise for the advocates, who in most cases had no idea how the jury perceived their efforts, for good or ill.</div>
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In his <a href="http://advocacyteaching.blogspot.com/2013/03/joseph-anderson-jrs-effective-courtroom.html">incisive book review of Joseph Anderson's book </a><i><a href="http://advocacyteaching.blogspot.com/2013/03/joseph-anderson-jrs-effective-courtroom.html">Effective Courtroom Advocac</a>y</i>, Hugh Selby wrote about the way we treat jurors:</div>
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<i><span style="background-color: white; color: #282828; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 13.1999998092651px; line-height: 18.4799995422363px;">While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests. The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.</span><br style="background-color: white; color: #282828; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 13.1999998092651px; line-height: 18.4799995422363px;" /><br style="background-color: white; color: #282828; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 13.1999998092651px; line-height: 18.4799995422363px;" /><span style="background-color: white; color: #282828; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 13.1999998092651px; line-height: 18.4799995422363px;">Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery. Anderson cites the 1993 National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done; about 15 % when the prosecution/plaintiff rests; a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions; with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.</span></i></div>
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I hope my student advocates remember the lessons they learned from serving as jurors and from talking to jurors about their own trial performances. After graduation from law school, this knowledge is hard to come by. Most of us will never have the opportunity to serve as a juror. After law school and a few years of practice, many lawyers have long since forgotten what it felt like to consider something from the standpoint of a regular human being without an invested interest in the case at hand. A few years ago,<a href="http://advocacyteaching.blogspot.com/2010/06/lawyer-turned-juror_04.html"> I blogged about and linked to a fantastic article in the Illinois Bar Journal, written by an attorney who actually served on a jury</a> (in Illinois, attorneys and judges are eligible to serve on juries and sometimes actually end up serving). I recommend not only that you read the article, but that you assign it to your students. </div>
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Wouldn't it be a wonderful thing if we could use experience and empathy to help avoid jurors "being driven to despair by advocates and trial judges who were oblivious to juror interests"? </div>
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--<i>Chris Behan</i></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-40459411434867595102015-05-27T14:28:00.002-05:002015-05-27T14:28:46.582-05:00Registration Open for 2015-2016 National Health Law Moot Court Competition<div class="MsoNormal">
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I'm posting this on behalf of my colleague Cheryl Anderson, who directs our moot court programs at SIU School of Law. This is a <u>great</u> competition. If your school hasn't sent a team to this, you should apply. The problems are always excellent, and the level of competition is superb. Plus, Carbondale is a nice place in the fall.</div>
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<i>The American College of Legal
Medicine, the Southern Illinois University School of Law, and the Southern
Illinois University School of Medicine, Department of Medical Humanities will
once again jointly sponsor the 2015-2016 National Health Law Moot Court
Competition. The Competition, our twenty-fourth, will be held on November
6 and 7, 2015 at the Southern Illinois University School of Law in Carbondale,
Illinois. With the support of the American College of Legal Medicine, as
in past years, several scholarship grants will be awarded. We have been
extremely pleased with the Competition over the last several years and look
forward to an even better competition in 2015-2016.<o:p></o:p></i></div>
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<i>On-line registration for the
competition is now open at this link: <a href="http://law.siu.edu/academics/center-programs/health-law-policy/health-competition.html">http://law.siu.edu/academics/center-programs/health-law-policy/health-competition.html</a>.
Local hotel and location information will be posted at a later date. We
would appreciate it if you would forward this email to the appropriate person
at your school for their information. You can also watch for the brochure
which will be mailed soon.<o:p></o:p></i></div>
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<i>If you have any questions, please
send them to <a href="mailto:mootct@siu.edu">mootct@siu.edu</a> or you may call
our Moot Court Board Assistant, Kristy White, at 618/453.8299 or email her at <a href="mailto:kristyw@siu.edu">kristyw@siu.edu</a>.<o:p></o:p></i></div>
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<i>We hope to see a team from your
school at the Competition in November.<o:p></o:p></i></div>
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<i>Cheryl Anderson<o:p></o:p></i></div>
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<i>Director of Moot Court Programs<o:p></o:p></i></div>
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<i>Southern Illinois University<o:p></o:p></i></div>
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<i>School of Law, M/C
6804
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<i>1150 Douglas
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<i>Carbondale, IL 62901<o:p></o:p></i></div>
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<i>618-453-5634
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<i><a href="mailto:cheryla@siu.edu">cheryla@siu.edu</a><o:p></o:p></i></div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com2tag:blogger.com,1999:blog-8797548749870864034.post-57152223218918548122015-05-25T11:18:00.002-05:002015-05-25T11:18:51.345-05:00MORE THOUGHTS ON EATS 2015 FROM AJ BELLIDO DE LUNA<div class="MsoNormal" style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: 12.8000001907349px;">
<span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">1.<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u style="font-size: 12.8000001907349px;"></u><span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">We are fortunate to have a place where coaches from all over the country can come together and break bread. The closer we are, the better likelihood that we can work things out on the road when we are in the heat of battle. It provides perspective and a reminder that we are all in this business to help train others. That is a mighty responsibility. We are fortunate that Charlie Rose and Stetson provides the space for us to engage with each other. A special thanks to Peggy Gordon and the folks behind the scenes that make things happens.</span></div>
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<u></u><span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">2.<span style="font-family: 'Times New Roman'; font-size: 7pt; font-stretch: normal;"> </span></span><u></u><span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">I mentioned that Joe Lester shared with me the web site created by Jeff Brooks down at LSU for all Mock Trial Tourneys around the country. Here is the website again. I am sure Jeff would be happy to get any updates to help keep the list fresh. Thanks Jeff for putting this together.<u></u><u></u></span></div>
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<a href="http://advocacy.law.lsu.edu/resources/list-of-national-trial-advocacy-competitions/" style="color: #1155cc;" target="_blank">http://advocacy.law.lsu.edu/<wbr></wbr>resources/list-of-national-<wbr></wbr>trial-advocacy-competitions/</a><u></u><u></u></div>
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<span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">See you all on the road. I miss you already.<u></u><u></u></span></div>
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<span style="color: #1f497d; font-family: Calibri, sans-serif; font-size: 11pt;">--<i>A.J. Bellido de Luna</i></span></div>
Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-31779191701752912492015-05-21T14:44:00.000-05:002015-05-22T11:32:32.433-05:002015 EATS Retrospective<div dir="ltr">
This morning, I said goodbye to a group of old and new advocacy teaching friends on the patio of the Rum Runner bar on St. Pete beach at 3:30 am, slept a few fitful hours, woke up, packed, and left Gulfport and Stetson behind me for another year. I'm tired--as a middle-aged man, late nights exact a harsher toll than they did when I was younger--but I can sleep on the plane or when I get back to Illinois. The conversations, companionship, and camaraderie were well worth the price of temporary sleep deprivation.<br />
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In his concluding remarks to the 2015 Educating Advocates/Teaching Skills Conference, Charlie Rose talked about how the conference had recharged his depleted set of mental and emotional batteries. I am reasonably confident his sentiments were shared by most attendees, but I am 100% certain that he spoke for me. The phenomenon occurs every year at the conference as we listen to gifted teachers and advocates share the science and art of teaching others what it means to be an advocate.<br />
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Every year that I attend this conference, I leave with new ideas for the classes I teach and the programs I run. I implement many of these ideas throughout the year. I keep some and discard others. The exposure to and experimentation with other teaching methods and advocacy ideas have made me a better person, a stronger advocate, and a more effective teacher. </div>
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1. <u>The Importance of Teaching Students Proper Use of Personal Theme Songs in Trial Preparation</u>. This came not from a formal presentation at the conference, but from a conversation with Alice Craig from the University of Kansas. She is going to blog about it, and I don't want to steal her thunder, except to say this: even though I have always relied on particular songs to help me focus, prepare for, and get into the right mindset for trial, it never occurred to me to pass this on to my students as part of their trial preparation. Alice does this with her classes. I can't wait to read about it.</div>
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2. <u>Dave Erickson's Lifetime Achievement Award Speech</u>. I've attended nearly every one of the Lifetime Achievement Award dinners and heard the speeches. All of them have been excellent, as one might expect from people receiving a lifetime achievement award for excellence in advocacy teaching. But Dave's was inspirational, on many levels. He emphasized the importance of hard work, a commitment to excellence, and thorough preparation--all hallmarks of his personal life and the approach his teams bring to mock trial competitions. He paid homage to the people responsible for the past, present, and future of mock trial competitions. He talked about how proud he was to be a member of the legal profession. In his inimitable way, he shared the story of how George Washington's physicians bled him with leaches while he was at Valley Forge to try to restore him to health, and he told us next time a doctor disparages the legal profession, we should help the doctor with a dose of perspective: "Remember, while <u>your</u> predecessors were sucking the lifeblood out of George Washington with leeches, mine were writing the Declaration of Independence and the Constitution." No one could say it better.</div>
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3. <u>Panel on Gender Bias and Trial Advocacy</u>. It's there, but we don't like to think about it, and even worse, many of us don't know how to address it or deal with it. We had a phenomenal panel discussion from Liz Boals (American), Alice Craig (Kansas), and Sara Jacobson (Temple) about how to identify and address the problems. The audience was lively and interactive, to put it mildly. I'd like to see someone from this panel or the audience write more about its significance to what we do as advocacy teachers and law school professors. </div>
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4. <u>Storytelling and Psychodrama</u>. I attended two breakout sessions with Charlie Rose and Rafe Foreman on storytelling and psychodrama. Both are closely related to each other, and both are at the heart of what we do as trial lawyers and teach as trial professors. Charlie introduced us to storytelling circles, and I spent a moving and intimate morning with about 10 other people, sitting in a circle and sharing stories of family, hope, sorrow, and joy. The catalyst was an inanimate object--in this case, a chalice-type silver bowl--that we passed around the room, with the holder of the bowl free to tell a story inspired in some way by previous stories, or to pass the bowl on to the next person. Rafe taught an introduction to psychodrama and sociodrama, whetting my appetite to learn more. I'm going to try to make it to a formal psychodrama training course this year.</div>
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5. <u>Joshua Karton and Gillian More</u>. Joshua is the High Priest and Shaman of advocacy teachers, and he worked his magic on a new group of teachers again this year. Gillian, to whom I deferentially refer as Gillian, Queen of Scots, braced us with her tough-minded, no-nonsense approach to advocacy teaching, but she also showed us what it meant to try new things and become vulnerable. On a selfish note, I get to teach with both of them in Oxford in July. The two months between now and then will not pass quickly enough for me.</div>
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6. <u>Law Professor as Hero and Advocate</u>. Steve Easton of Wyoming took us through the classic hero's journey when he gave an impassioned and inspiring pitch, encouraging law professors--despite the personal, financial, and professional price--to take on pro bono cases for our own good and that of our students, clients, and the profession. When I grow up, I want to be like Steve.<br />
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7. <u>And All the Rest</u>. I've left things out, but by doing so, I do not mean to slight or diminish any part of the conference. It was <u>all good</u>. To those who attended and got something different from it than I've written about: please write about it, send it to me, and I'll post it to the blog. To those who couldn't come, I hope it works out next year. To those who've never considered coming: we'd love it if you'd join us.</div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-6261457635801719282015-05-19T14:00:00.000-05:002015-05-19T14:00:45.377-05:00ADVOCACY TEACHING IDEAS FROM THE NEW YORKER?<div dir="ltr">
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<span style="line-height: 18.3999996185303px;"><b>Judge Robert McGahey of Denver submitted the following guest post:</b></span></div>
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<span style="font-size: 12pt; line-height: 115%;">I've subscribed to </span><i style="font-size: 12pt; line-height: 115%;">The New Yorker</i><span style="font-size: 12pt; line-height: 115%;"> for years and read it cover-to-cover when I get it. The articles that are directly about the law and the legal process are frequently insightful and thought-provoking, especially those by Jeffrey Toobin.</span><span style="font-size: 12pt; line-height: 115%;"> </span><span style="font-size: 12pt; line-height: 115%;">But every now and then there's an article that's not directly related to the law that has application to advocacy or advocacy teaching.</span><span style="font-size: 12pt; line-height: 115%;"> </span><span style="font-size: 12pt; line-height: 115%;">I'd like to call your attention to two such recent articles.</span></div>
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<span style="font-size: 12pt; line-height: 115%;">In the March 9, 2015 issue there's an article titled <a href="http://www.newyorker.com/magazine/2015/03/09/frame-of-reference-john-mcphee">"Frame of Reference"</a>, written by the inimitable John McPhee, one of my favorite authors. McPhee writes on a myriad of subjects and his economical but stylish writing is always a treat. This article discuss the fact that different people understand – or don't understand -- what someone is talking or writing about depending on the listener's or reader's frame of reference.</span></div>
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<span style="font-size: 12pt; line-height: 115%;">Anyone who knows me knows I love to make pop cultural references (and frequently really obscure ones) when I speak or teach. Even so, I have long taught my students to avoid such references in court, since everybody doesn't understand those references in the same way and may not understand them at all. This was brought home forcefully to me several years ago, when discussing <i>Judgment at</i> <i>Nuremberg </i>with a seminar group. I referred to the characters played by Spencer Tracy and Burt Lancaster, and was met with many blank stares. I then realized, to my horror, that most of these young Philistines didn't know who I was talking about. McPhee actually calls out folks like me when he writes: "Don't assume that everyone on earth has seen every movie that you have seen. In the archives of ersatz references, that is among the fattest folders."</span></div>
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<span style="font-size: 12pt; line-height: 115%;">The advocacy teaching takeaway here is to remind our students to consider the frame of reference of the juries and judges they speak to and the witnesses they question. Students should focus on references, analogies and comparisons that are truly universal and they should avoid ones that aren't. Such references, analogies and comparisons can make our case story livelier, easier to understand and more accessible, but using incomprehensible or confusing ones can create confusion or hostility that leads to failure.</span></div>
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<span style="font-size: 12pt; line-height: 115%;">The second article is one by Malcolm Gladwell titled <a href="http://www.newyorker.com/magazine/2015/05/04/the-engineers-lament">"The Engineer's Lament,"</a> in the May 4, 2015 issue. Gladwell is the best-selling author of books like <i>What the Dog Saw, Outliers,</i> and <i>The Tipping Point</i>, and is a frequent contributor to <i>The New Yorker.</i> I know that everyone isn't a Gladwell fan, although I always enjoy his stuff, even if I don't always agree with him. This article is an exploration of how people trained as engineers tend to think about and approach problems in a different way than folks not so trained. He quotes this unattributed saying:</span></div>
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<span style="font-size: 12pt; line-height: 115%;"> "A pessimist sees the glass as half empty. The optimist sees the glass as half full. The engineer sees the glass as twice the size it needs to be." </span><span style="font-size: 12pt; line-height: 115%;">Gladwell's article first got me thinking about how we do this as lawyers.</span><span style="font-size: 12pt; line-height: 115%;"> </span><span style="font-size: 12pt; line-height: 115%;">There's all that hullabaloo about teaching 1L's to "think like lawyers"; remember Professor Kingsfield's remark: "You come in here with a skull full of mush; you leave thinking like a lawyer."</span><a href="file:///C:/Users/siu850484227/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/LYKMEQPI/ADVOCACY%20TEACHING%20IDEAS%20FROM%20THE%20NEW%20YORKER.docx#_ftn1" name="_ftnref1" style="font-size: 12pt; line-height: 115%;" title=""><span class=""><span class=""><span style="font-family: Calibri,sans-serif; font-size: 12pt; line-height: 115%;">[1]</span></span></span></a><span style="font-size: 12pt; line-height: 115%;"> It's why we encourage our students to avoid jargon, legalese and too many words of art when operating in a courtroom.</span><span style="font-size: 12pt; line-height: 115%;"> </span><span style="font-size: 12pt; line-height: 115%;">After all, most juries aren't made up of lawyers.</span></div>
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<span style="font-size: 12pt; line-height: 115%;">But Gladwell's article struck another chord for me, this one with how we present expert witnesses in courtrooms. The article's more specific focus is how automotive engineers look at product defects and how that differs from the rest of us: "To the engineer, a car sits somewhere on the gradient of acceptability. To the public, a car's status is binary: it is either broken or working, flawed or functional."</span></div>
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<span style="font-size: 12pt; line-height: 115%;">Think back on a time when you were having trouble getting expert testimony to resonate with a jury, or better, when you had an expert whose testimony had the jury nodding their heads in understanding. Wasn't the better expert a great teacher, someone who could make complicated matters understandable, frequently by the use of easily understood comparisons or analogies? (Ah! <i>McPhee</i>!) Wasn't the better expert someone who didn't talk like one, someone the jury could relate to, who's testimony the jury could accept as the correct explanation for an what seems at first blush to be an obscure or impenetrable subject? Shouldn't we teach our students how to work with experts to give that expert's testimony the best chance of being accepted and adopted by the jury -- in other words, how to make that expert's testimony persuasive?</span></div>
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<span style="font-size: 12pt; line-height: 115%;">I would urge you to read these two articles and see if you can adapt their ideas into to your teaching. And please share what "un-lawyerly" stuff you use to teach advocacy!</span></div>
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<a href="file:///C:/Users/siu850484227/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/LYKMEQPI/ADVOCACY%20TEACHING%20IDEAS%20FROM%20THE%20NEW%20YORKER.docx#_ftnref1" name="_ftn1" title=""><span class=""><span class=""><span style="font-family: Calibri,sans-serif; font-size: 10pt; line-height: 115%;">[1]</span></span></span></a> John Houseman as Professor Charles W. Kingsfield, Jr., <i><u>The Paper Chase</u></i>, (20<sup>th</sup> Century Fox, 1973.) The inclusion of an ironic movie reference is absolutely deliberate. </div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-2268680931592015532015-03-16T14:11:00.002-05:002015-03-16T14:11:48.434-05:00“IS JUSTICE FOR SALE?” WHAT’S OUR ROLE AS TEACHERS?<div dir="ltr">
<b>Judge Robert McGahey submitted the following post:</b><br />
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About ten days back, Chris posted a very thoughtful piece (link <a href="http://advocacyteaching.blogspot.com/2015/03/if-justice-is-for-sale-does-advocacy.html">here</a>) which was inspired by an <a href="http://www.politico.com/magazine/story/2015/03/judicial-elections-fundraising-115503.html#.VQcqo454rYh">article in Politico</a>. I read that article and would offer these comments as both a judge and a teacher.<br />
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In addition to teaching Trial Advocacy courses, I also helm the Judicial Externship Seminar at DU Law School. Per the ABA, every judicial externship requires an academic component, and that's my task. I try to focus on issues that aren't always talked about in law school and the last class session always focuses on the how judges are selected, and the influence of politics and money on judicial decisions. I tell the students that the class is about the value of an independent judiciary in a free society – and I have them watch Judgment at Nuremberg to see how perverted a justice system can become. Knowing that some students will poo-poo the movie with "it can't happen here," I assign as extra reading articles like the one in Politico, as well as cases like Caperton v. Massey.<br />
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Since many of my students come from Colorado, where there is no direct election of judges, there is shock and amazement when they find out that 39 states still elect all or part of their judiciary. (Admit it: some of you were shocked to find that out, too.) We talk about what that can do to judicial thinking. I have yet to find a student who thinks that electing judges is a good idea. Some of the most fervent opponents to that concept come from states where election of judges is the norm.<br />
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My seminar also includes earlier sessions where I ask the students why they went to law school and whether their motivation for being here has changed as they progressed. Those sessions are interesting, to put it mildly. Many students seem to come to law school without any clear idea of why they came or what they want to do at the end. I don't critique their reason or choices; the idea is to get them to examine their motivations and those choices, to see how they tie into the greater framework of the legal system in general.<br />
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All of us who teach recognize that our students will be practicing law after we're dead. Courtroom advocacy matters to us, in a profound and visceral way. We have a duty to the system to make sure the people who follow us aren't just going through the motions; as Chris so eloquently put it, "It would be a tragedy if they were all as good as Atticus Finch in courtrooms where it didn't matter."<br />
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Finally, we shouldn't forget the words of Preamble to the Model Rules: "A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having<i> special responsibility for the quality of justice</i>." (Italics mine.) We must never shirk that responsibility in either the courtroom or the classroom.<br />
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--<i>Judge Robert McGahey</i><br />
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com0tag:blogger.com,1999:blog-8797548749870864034.post-59445543897837946662015-03-05T22:34:00.000-06:002015-03-05T22:34:11.213-06:00If Justice is for Sale, Does Advocacy Even Matter?<div dir="ltr">
I had an interesting telephone conversation with my good friend Joshua Karton a couple of days ago. He wanted to know whether I thought online advocacy classes would push budding advocates further away from the human connection in the courtroom that is such a vital component of the trial advocate's art. He spoke of the relentless forces that already hinder access to courtrooms and wondered whether technology is becoming yet another barrier to justice for the poor and the powerless.<br />
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Last summer, I taught an online advocacy course. I intend to write more about that experience in an upcoming blog post. In the meantime, I must admit that my conversation with Joshua caused me to take a mental step back and try to see the big picture of the adversary trial system and identify the forces that might interfere with the search for truth and justice. </div>
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This afternoon, I read an article in Politico Magazine online that gave me pause. In the article, <a href="http://www.politico.com/magazine/story/2015/03/judicial-elections-fundraising-115503.html#.VPkmqPnF9O0">I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There: How Money is Ruining America's Courts.</a> Sue Bell Cobb, a former Chief Justice of the Alabama Supreme Court writes about the corrupting influence of campaign donations on the justice system. She asks a provocative question: "How do we convince Americans that justice isn't for sale--when in 39 states, it is?"<br />
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When I teach trial advocacy courses, I try not to be cynical with the students. I want them to believe that their efforts might make a difference for clients. I want them to feel a sense of professional obligation as they learn case analysis, all the individual skills that are part and parcel of trying a case, and the art of advocacy. </div>
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But what if it doesn't matter? What if outcomes are pre-ordained by forces outside the courtroom? I often show my students Atticus Finch's closing argument in <i>To Kill a Mockinbird</i>. It's a powerful argument, well and persuasively delivered by Gregory Peck. And it's also a losing argument, one that never had a chance to succeed in a courtroom where the outcome was already determined because of the prejudices the jurors brought with them into the jury box.</div>
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In law school, I took a public interest law course. I thought the course would be primarily about how to help the poor with their immediate problems--navigating the welfare bureaucracy, obtaining relief from oppressive creditors, finding affordable housing. But I learned it was much more than that. It also involved taking a look at the structures and systems that created or contributed to those problems in the first place and learning how to change laws and influence organizations for the public good. </div>
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I wonder if perhaps it might be worth it to take a broader view of the justice system when we teach trial advocacy. Perhaps it would be a different course altogether, a separate course such as a jury trial seminar. But it might be worth it to get our students to start asking questions about the system itself, even as we train them to be technically proficient advocates within it. It would be a tragedy if they were all as good as Atticus Finch in courtrooms where it didn't matter. </div>
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Chris Behanhttp://www.blogger.com/profile/09758408764783435612noreply@blogger.com1