Thematic Foundations for Advocacy Courses

Designing an advocacy course is a challenging task. One of the panels at the recent EATS conference addressed issues of course design and implementation. The panel consisted of advocacy professors from several law schools: Chris Behan (SIU), Megan Canty (Loyola-Chicago), Rafe Foreman (UMKC), Wes Porter (Golden Gate), Adam Shlahet (Fordham), and Gwen Stern (Drexel). Wes and I were supposed to participate from San Francisco via Skype but ran into technical problems. The remaining panel members had to operate under a bit of a time crunch. Prior to the conference, however, we each prepared extensively for our presentations, developed a structure for our panel, and created handouts for distribution at the conference.

What I hope to do in the next few blog posts is to provide for our blog readership the handouts we created for our panel presentations. We built all of our presentations on the idea that there are common thematic foundations for all advocacy courses: certain elements that the course designer must include in order to be successful. There are also some common pitfalls, dangers, and trouble spots to be aware of and avoid if necessary. On that foundation, we then prepared presentations pertaining to different advocacy courses based on trial phases. In other words, we started with pretrial advocacy courses and ended with appellate advocacy courses.

Teaching with NITA: A Report from the Rocky Mountain Basic Trial Program

Suparna Malempati is the Director of Advocacy Programs at Atlanta's John Marshall Law School. From time to time, she guest blogs for us. In this blog, she shares her recent experience teaching in a NITA program. I wholeheartedly endorse all she has to say about teaching with NITA, and I recommend the experience for anyone who loves trial advocacy, teaching, learning, and having fun with a great group of people.

The end of an enriching work trip is often bittersweet. On the one hand, you are glad to be home to familiar surroundings and the routine of daily life. On the other hand, you miss the intellectual challenge of being in the company of highly accomplished professionals. I certainly felt that way after four days of teaching with NITA at the Rocky Mountain Basic Trial Program.

Illinois State Bar Association Recommends Changes to Legal Education

Recently, the Illinois State Bar Association commissioned a study and released a report (available here) recommending changes to legal education. An ISBA synopsis of the report is available here. As outlined in the ISBA synopsis, the recommended changes include the following, some of which will be of interest to the advocacy teaching community:

The Special Committee made a series of recommendations to mitigate the law school debt crisis and transform legal education to focus on educating lawyers at an affordable price.

• Congress and the Department of Education should place reasonable limits on the amount that law students can borrow from the federal government.
• Rather than allowing all accredited law schools to enroll students receiving federal student loans, Congress should restrict federal loan eligibility to schools whose graduates meet certain employment and debt-repayment outcomes.
• The federal government should ensure that funds available in these programs are targeted to students most in need.
• Law schools must have the ability to experiment with new models of legal education to find the best ways to control costs while still delivering a quality education.
• Law schools themselves must transform their curricula to more emphasis on practice-oriented courses, with greater focus during the second and third years of school on helping students transition to practice through apprenticeships, practical courses and teaching assistantships, rather than the more traditional doctrinal courses. Needed reforms also include changes to law school faculty.

The final recommendation is particularly relevant to advocacy teaching, because advocacy courses already are designed to accomplish this objective. And yet, as some of you know and personally experience, not all law school faculties are receptive to practice-oriented courses or the people who teach them. This has been a periodic topic of discussion at EATS, as I imagine it will be for years to come.

I think the ISBA report is significant because it represents an organized effort by the practicing bar to help shape the nature and future of legal education. I've read the entire report, and although I do not agree with all of it, I cannot dismiss any of it. The report recognizes that a professional education cannot be entirely academic in nature, and it outlines the challenges faced by the graduates and the practicing bar when law students don't obtain the training and skills they need while in law school. At one time, the generally recognized purpose of law school was to teach students to "think like a lawyer," with the expectation that additional skills training could take place after graduation. As we know, law firms and government agencies no longer have the resources or inclination to provide such training.

To underscore the significance of what the ISBA is telling us, our law school hosted our annual Beatty Jurist in Residence this past week. This year's jurist in residence came from Florida's 11th Judicial Circuit in Miami. At a faculty lunch, several of my colleagues asked her about her perception of the readiness of recent law graduates to practice, as compared to when she graduated from law school. Without naming schools, she said there is a clear difference in practice readiness in the graduates of different law schools that appear before her. Some of them know what they're doing: they know how to analyze a case, prepare for court, conduct a trial, and so forth. Some of them, unfortunately, do not. Her message to us, and to our students, was that preparation while still in law school is more important than ever before. She spoke to my criminal law class and advised them to seek out clinics, externships and internships to learn how to be a lawyer, and she cited her own clinical experience in law school as being absolutely critical to her career development.

I found it interesting to consider that the differences from school to school are so apparent, but this matches my own experience when I taught trial advocacy recent to law school graduates at the Army JAG School. There really were differences--and sometimes, very stark ones--from school to school. And truth be told, some of the graduates of the so-called lower-tier schools were much better prepared to actually practice law than their counterparts from more prestigious schools.

Take the time to read the ISBA report (available here), or at least the synposis (available here) , and please feel free to comment about it in the comment section of this blog posting.

Principles of Advocacy Teaching

Some advocacy teachers approach advocacy teaching in the trial order: opening, chief, cross and closing. Case analysis drops in. Others start with closing - because it requires an understanding of the case. Still others take the approach of evidence first, so chief and cross, followed by addresses - opening and closing. Once again, case analysis drops in.

Given that each of these ways leads to some students being excellent there is always enough evidence to support doing the next course, and the next, in the same way. The less successful students just 'don't get it' and are disregarded as being the cause of their inadequacy. Given this natural order of things there hasn't been widely publicised discussion about such questions as, 'what is the approach to teaching advocacy most likely to maximise learning for the participants?'

The relevance of this question is heightened by the increasing use of 'online' teaching and learning materials. Because the usual on line formats lack the motivational, interconnectedness, and spontaneous aspects of good face to face education there needs to be an 'up front' declaration of not only what will be taught but also why it will be taught in a particular order and in a particular manner. Viewers want to know 'the promise' and they want to know 'why the promise comes in this way' and they want both from the start. Just like a good opening statement isn’t it?

What follows are most of the principles that guide my approach to teaching advocacy. I say ‘most’ because I’m bound to overlook some. The purpose of sharing them is to provoke discussion both now on this blog (so please use the COMMENT function or submit your article), and at EATS2013 (22-24 May, Stetson College of Law) about the what and why of best practice advocacy teaching.

These principles reflect my quarter century journey of teaching discovery, a journey marked by my incremental abandonment of nearly everything I was taught both about advocacy and how to teach it.

Principle #1: Practise what you preach. That's hardly novel, but let's rephrase it as: Teaching is an act of persuasion. Advocacy is being persuasive. Teaching advocacy should mirror the techniques of good advocacy. I like to think of advocacy as a trade skill, rather like being a car mechanic. What matters with the problem car is either the ability to fix it - preferred, or failing that, a persuasive reason as to why it can't be fixed. So it is with advocacy: here's how we'll win the case - preferred, or, 'our focus is a dignified, harm minimised exit'. As an advocacy teacher, like the mechanic instructor, I want the students to acquire those 'win well or lose well' skills.

Principle #2: Persuasion meets the emotional wants and the objective needs of the multiple audiences (eg. decision makers, opponents, clients, public gallery). Every politician, advertiser, radio shock jock, religious manipulator, real estate and car retailer, cancer and weight loss scammer, successful trial lawyer, and successful appellate lawyer has some 'intuitive' grasp of this principle and the repeat capacity to act on it. The 'objective needs' have to do with correctly applying the law and 'being seen and heard to do justice'. The emotional wants have to do with showing empathy for victims, as well as dealing with deep- seated prejudices founded in race, gender, sexual preference, religion, and responses to aspects of the advocate's personality.

Principle #3: Advocacy is a blood sport in which performance reflects a combination of the learning from past experience, thorough preparation, and a 'born with' talent to seize the moment at trial. It used to be said that 'good advocates are born not made'. That gave way to the belief that, 'good advocates are made not born'. Common sense, derived from our life experience, tells us that, 'the best advocates are born and made, competent advocates are made, and not everyone has the capacity to be made'. 

Principle #4: Advocacy at trial and on appeal produces a winner and a loser. There are no ties. High-level competition leaves little to chance: preparation requires knowing the opponent’s case along with your own. Those who can’t anticipate the other argument and the contrary facts should stick to being well-informed spectators. Basic advocacy training sorts out those who should do and those who should view.

Principle #5: All sports have rules. Advocacy is a sport so know the rules. Advocacy is a sport so knowledge of the rules is both offensive - to use against the opponent - and defensive - to be able to withstand rule based attacks from the opponent. As with sport the advocacy rules are definitional (cause of action, elements of the criminal charge, procedural, sportscraft ethics) and govern play (evidential rules of relevance and admissibility, advocate's conduct, time between meal breaks etc.). It follows that advocacy students must make mastery of the FRE and/or their State's evidence provisions a high order task both in preparation and performance. My experience is that this is much easier to write here than to achieve as a teacher. Part of the problem is that far too often the teaching of evidence is not tethered to advocacy instruction. This is a strange state of affairs: I can't say that outside of law schools I've met someone who carefully learned the rules of a game but avoided ever playing it or watching others play it.

Principle #6: Every trial and appeal takes place in a real world environment in which being dispassionate is aspirational rather than what happens. Court rooms seem designed to keep the world at bay, by having no windows or dirty windows that when clean allow a limited view of the sky, but the reality is that everyday hopes and fears are part of the baggage that everyone present brings into the court room. The advocate recognises that baggage, co-opting that which is helpful, and doing their best to minimise the effect of that which is unhelpful to their cause.

Principle #7: Be clear that the only way to become skilled is by repeated failure and occasional success. I start my courses by saying that we are on an 'error driven' journey, that by experiencing our and others' errors we can learn an approach that works. 'Do not fear failure', I say, 'Embrace it'. Of course, when I make some beginner's error I can point out that there is never too much practice. Students like it when the teacher stumbles - providing it is not too often.

Principle #8: A teacher who hogs the critique role is failing their students by making them passive observers when they could be active participants. When students critique their peers they must apply what you have taught and they should have learned. Critique is a valuable self-reinforcement. What's more, the steps of being positive, picking a real issue, explaining the problem, and suggesting the fix - all done succinctly and with quiet confidence - mirror an effective technique in closing argument. There is another lasting benefit from requiring the students to critique: many will never be professional advocates but may have to choose such an advocate to run a case. A practised critique skill helps to make a choice that is informed by skill, rather than by friendship or gossip.

Principle #9: There is no substitute for experience in advancing skills learning. Effective student learning requires the active participation and oversight of an advocate who can teach. There’s some current nonsense that you can give students just a bit of teaching and then leave them in their groups to advance. Sure you can leave them in their groups to practise, but you – the teacher with advocacy experience - have to come back time and time again to check that practice on that task is leading to perfection. In order for them to advance the teacher must lead.

Principle #10: The teaching, like the advocacy, must lay a foundation and move incrementally. People learn, and they remember, when the pieces are small, when they can achieve success with the latest small piece, and when they can grasp the whole picture. It follows that the overarching task - be that direct, cross, aligning the facts with the legal issues, etc. - must be broken up by the instructor into a series of progressive steps, each of which is explained, demonstrated, practised and critiqued. 

Principle #11: Keep the facts simple and unchanged while the basic techniques are being learned. Changing the facts is something to be done when the students have acquired some confidence about the form of the question, topic transition, witness control, and organisation of argument. Changing the facts too early is rather like the mechanic instructor discussing hybrids when some in the class are still not sure about the four stroke cycle. I usually use the first verse of the nursery rhyme, ‘Jack and Jill’ as my beginners class script because the students recall it, and the class quickly finds that there are many interpretations of the rhyme – caused mainly by the variable illustrations in the nursery books or on the TV Playschool backdrops. Usefully the verse lends itself to Jill having criminally assaulted Jack, or a civil case for damages founded in negligence, assault, or environmental malfeasance.

Principle #12: Never use a written script with beginners if you have a video clip/live demonstration of the same facts. A written script inevitably leaves much to the imagination. That's very useful when students are more advanced. But, in the early stages, when we are trying to inculcate the virtues of story telling and picture reconstruction into question technique, then a commonly shared video clip, or incident acted out in front of the class, is a better resource. If anyone has one or more clips of ‘Jack and Jill’ please let me know.

Principle #13: A lawyer advocate's craft is to be persuasive with law and fact. It follows that as teachers we must inculcate into every student the invariable first question: 'what is the law?', followed by, "How do the facts that we know fit around those legal requirements?'. For me the answer to the question, ' What is the first advocacy topic?' is 'case analysis'. Until that is done there is a lack of common attitudes held by teacher and students. When it is done then there is the framework upon which the questioning, objecting and address skills can be built.

Principle #14: Good case analysis moves seamlessly from preparation to court room. It is inefficient to do twice what can be done well once. Linear and matrix approaches to case analysis fail this requirement. That’s not surprising because they inherently lack the capacity to respond flexibly to the inevitable changing environment of a trial or appeal. I have found that randomised ‘mind map’ approaches, using a white board rather than an Eapplication, work best. The use of large white board on which issues and facts can be shown, along with possible connections among them, and prioritisation for the order in which to present them at the hearing, draws in the students, has them involved, and leads to a clear ‘in court’ presentation plan.

Principle #15: Experience teaches that there are some advocacy bad habits that are almost universal. Such habits need to be dealt with immediately and firmly before they become entrenched. Some examples are: speaking too quickly, no pauses to allow the audience and the advocate to reflect, not listening to the answer, asking questions that begin with any of, “could you, would you, can you, did, does, I put it to you, I’d like to ask you”, anxiety twitches, swaying. Because there are bound to be a number of offenders in any class it is easy to make the eradication exercise a game. The usual sequence is: student makes error, instructor points out error, student understands, student tries again and repeats the error, class laughs, student tries again and catches themselves making the error. Student is now on the road to recovery.

Principle #16: Dealing with student ‘push back’ is a test both of your advocacy and teaching skills and the student’s advocacy potential and learning skills. Students like jurors come to us with more secrets than we can ever know. They do and say things for reasons beyond our grasp. Responding to ‘push back’ is similar to responding to the judge at trial or on appeal who is against you for good or bad reasons. We have to demonstrate listening, self-control, masking, and content rich answering skills. And in those cases where there is no way other than the ‘put down’ to deal with a repeat offender then the barb has – like the cross indoctrination retort – to be a thing of fatal beauty.

Hugh Selby © October 2012.

Don’t Critique What You Don’t Know How to Fix

"You talk too fast. You have to slow down. So work on that, okay?"

"Okay."

I heard that critique more than once as a student advocate and as a trial attorney in the Army JAG Corps. I would try to slow down—really I would—and sometimes I could be successful for as long as a minute or two. But when the adrenalin began to flow, I would forget to slow down, and once again, I would talk too fast. I was aware of it, but I didn't know how to stop, and no one who told me to slow down ever taught me how to do it.

A critique that identifies a problem without providing a solution that works is useless to the student. Nothing will change. In fact, things may become worse for the student as she becomes more conscious of her shortcoming, yet frustrated by her inability to solve the problem.

A few years ago, I adopted a critiquing mantra that I adhere to religiously: don't critique what you don't know how to fix. If I don't know how to help a student and can't figure something out in that moment between the end of their performance and the beginning of my critique, I stay away from it. . Paraphrasing Mark Twain, I've come to believe in such situations that it is better to be thought a fool by my silence than to open my mouth and remove all doubt. It's better for me, but more importantly, it's better for my students.

I developed this mantra after sitting through some very awkward advocacy critiquing sessions, watching folks dispense such sage advice as: "You don't talk loud enough. Talk louder so people can hear you." "Your movements are distracting. Stop making distracting movements. That way, the jury won't be distracted by your movements." "I don't like what you're doing with your hands. It's annoying. Put them somewhere else." And so forth. The teachers had identified genuine problems, but had given a tautological solution that was of absolutely no use to the student. And by the way, I do not excuse myself from this condemnation; I've given many useless critiques to students over the years

It's easy to identify advocacy mistakes, but much harder to fix them. So the question naturally arises, if we don't know how to fix things, how do we learn? The answer to that is easy. Teach with others, borrow freely from them as you watch them solve advocacy problems, and reach out to colleagues when you need some help. Sometimes, even in a short advocacy course, a brief conversation with someone else can provide a solution that you can then offer to the student later in the course. Often, I'll take note of the problem and contact a friend for help (I'll admit, I've even written to the Advocacy Agony Aunt on this blog and, using Hugh Selby's advice, helped a student solve a problem).

When you can help a student change an advocacy weakness into a strength, you are participating in something that is truly transformational. It can even be life-changing. I went through this myself several years ago as a student in Joshua Karton's course at the Army JAG School, and I have seen him work his magic on many other students since then. I watch in awe, and I take away from Joshua what I can and use it with my own students.

I've attached a link to a video that Charlie Rose and Hugh Selby took this summer at a NITA course. The three of us had a student who could not slow down yet had been told for years that she needed to do so. Watch Hugh in this video, and then, when you face students with the same issues, try the technique. It works.

I tried it again this last week in a trial advocacy course. The student that I was working with spoke so fast it was difficult to keep up with her. So I stopped her, asked her to take off her shoes, and walked her through Hugh's toe-flexing exercise. She was embarrassed at first—and on the verge of tears at one point—but she did it. And, most importantly, she slowed down. She is on one of our school's appellate advocacy moot court teams, and she told me that people have been telling her to slow down for years, but no one ever told her how to do it.

Thanks to Hugh, I learned how to help her, and I was able to provide the solution to her problem. But if I had not gained this knowledge from him (or someone else; I'm sure there are other effective techniques in use), my critique would have been worse than useless to her. It would have been the same empty phrase she'd heard many times before.

Don't critique what you can't fix. But remember—everything can be fixed. If you don't know how to solve a student's advocacy problem, reach out to someone who does, learn what to do, and then return to the student and help them. It will change them—and you—for the better.

 

 

Becoming an Adjunct Trial Advocacy Professor

This piece follows up on Charlie Rose's article on becoming a law professor, and Mark Caldwell's article on breaking into teaching ranks of NITA and other organizations. The third way to teach advocacy is to join the faculty of a law school as an adjunct professor. I'd like to add a few insights on how to break into that market. I recommend reading the articles from Charlie and Mark first, however, because I don't intend to repeat any of their very solid advice, and much of it is applicable to teaching as an adjunct.

Most law schools employ adjunct faculty to teach courses, both doctrinal courses and skills courses such as trial advocacy. The majority of adjunct faculty members practice law in the public or private sector or serve as judges. Students enjoy taking classes from adjunct professors, who bring a real-world perspective to the classroom and bridge the gap between theory and practice in a way that many full-time faculty members cannot or will not.

Teaching as an adjunct is a labor of love. I have never met anyone who became wealthy as an adjunct professor, nor have I met any law school adjunct professors who could make a living from their adjunct salaries. The small stipends that law schools pay adjuncts can never truly compensate them for their time. I sometimes think of how much income my civil trial practice professor, a partner at a major law firm, must have lost to teach our weekly class, which involved a two-hour round-trip drive and a two-hour class. Nonetheless, there is never a shortage of adjunct faculty candidates for open positions. I believe this is because many lawyers love what I call the great teaching tradition of the bar: the opportunity to impart knowledge to a rising generation and help mold the careers of lawyers-in-training.

In a trial advocacy context, few trial ad programs could function without adjuncts. Advocacy is labor-intensive. As we've learned from NITA's research over the years, the ideal class section for trial advocacy is about eight students, with twelve being the outer limit of what an instructor can handle and what will give students a fair opportunity to learn by doing, which is the key to mastering advocacy. Some programs have adjuncts teach a stand-alone advocacy class, and others, such as the one I teach, feature a lecture and lab format, in which a large number of students meet together for lectures and demonstrations, then break into smaller groups for practice and grading. No matter how these courses are organized, there is always a need for good adjunct professors—and lots of them.

So—how to break into this market? Let me offer a few tips. There are doubtless others, and if you have some, please add them to the comment page for this post.

1. Examine your motivation. If you love to teach, are good at it, and are willing to essentially give away your time for the intangible rewards that come from teaching, you're on the right track. If you're hoping to pad your resume, or use an adjunct position as a launching point for a career in academia, you might want to reconsider. Because of the nature of law school faculties and the hiring process (see Charlie's post), your chances of moving from adjunct to full-time professor are slim. It does happen, but it's rare. Ask yourself—would I do this for free and for no recognition other than the good work of my students? If you would, you're probably doing it for the right reasons.

2. Evaluate your skills. Not all good advocates know how to teach others to try a case. If you have no experience teaching advocacy, your candidacy might not be as attractive as someone who has taught advocacy in other forums, such as NITA courses, high school or college advocacy teams, and the like. This might be true even if you are a successful lawyer from a prestigious firm. Speaking from my own perspective, when evaluating adjuncts, I look for relevant teaching experience more than trial experience. Bars throughout the country are full of great trial lawyers who can tell great trial stories, but NITA proved long ago that a systematic approach to teaching trumps war stories in effectiveness.

3. Become a Volunteer. You can get volunteer teaching experience in a variety of ways. Advocacy programs at law schools always need people to serve as judges or evaluators. Trial competitions have a voracious appetite for volunteer judges and teachers. Your bar association might run programs or need CLE instructors on advocacy topics. If you are near a law school, get to know the director of the trial advocacy program and offer your support. Directors are grateful for the support, and they always get feedback from the students about volunteers who are particularly good. To echo something Mark Caldwell said in his article on teaching for NITA and similar organizations, when someone takes you up on your offer to volunteer, make every effort to be there. My own start in advocacy teaching came about 8 years ago when Charlie Rose had a conflict and could not make it to Jim Seckinger's week-long trial course at Notre Dame in which Charlie was an adjunct. He asked me to substitute for him, and Jim kept inviting me back. I never did become an actual adjunct at Notre Dame, but I did teach in the program for several years. The experience, the contacts, the advocacy teaching training I received—all were invaluable.

4. Get Certified. Several years ago, I took NITA's Teacher Training Program at Harvard. This course was one of the transformational moments in my professional life. Learning how to recognize teaching moments and help students improve in a systematic way changed the way I taught, and I have to say, it also changed me as a person. In fact, I took the course in between the first and second times I taught for Jim Seckinger, and Jim—who did not know I had taken the course—made several comments about the vast improvement in my teaching ability. I'm not trying to pat myself on the back here; instead, I'm trying to emphasize just how influential these training courses can be. NITA offers a course, Stetson offers a course, and I know there are other teaching courses out there. It's worth the time and money to take one.

5. Comply with University Search Requirements. I'd love to just pick up the phone and hire a good adjunct when I need one, but I work for a state university, and we have to comply with university search requirements and state law. I've experienced problems in the past with candidates not submitting materials that are required by the university as part of the hiring process. If you hear about a position, don't assume that your friendship with the dean or advocacy director will get you the job. Fill out the proper paperwork and turn it in on time.

6. Work and Play Well With Others. As I mentioned earlier in this post, schools use a variety of approaches to teaching advocacy. You might be a lone ranger, running your own program and class without guidance or assistance. You might run your own program within well-established school guidelines. You might be part of a unified advocacy faculty such as the one I have at SIU or that Tom Stewart has at Saint Louis University. If you are part of a larger program, and don't happen to be in charge of it, be a good citizen. Never disparage your fellow faculty members in the presence of students. If you disagree with a policy or teaching approach, bring it up in faculty meetings, not by open resistance to it in the classroom. Turn in grades on time and comply with administrative policies that are designed to keep the program running smoothly and comply with school rules and requirements.

7. Always Put the Students First. This is the key to advocacy teaching, no matter what the arena. The students come first: before your ego, your wit, your desire to tell one more war story, your moods or your exhaustion. If you put them first, they will notice, and you will have a lengthy and successful experience teaching young advocates.

Evidence based Advocacy Teaching

Advocacy instruction: most litigators are aware of it, some have fond memories of the moments when everything clicked, when their career decision was made. Others recall moments of humiliation and measure their strength of resolve by the observation, “Despite what that sadistic instructor said and did, I’m here and I’m good” – a Dickensian throw back.

So, for better or worse, the common talk about advocacy instruction and its results are the stuff of assertions fuelled by adhoc experience – the ‘feel good’, feel awful’ sentiment of past particular moments which may, or may not, be reflected in today’s real life performance as a litigator.

Thirty and more years of formalised advocacy training has, at least, dispelled the nonsense that advocacy skill is only an innate trait. Repeated advocacy brilliance reflects the combination of applying ‘lessons from experience’ and a gift – just as brilliance in any performance display reflects much effort sharpened by that gift denied to all of us who watch with envy.

However, there’s an important difference between the training that is offered across our sports and for advocates. For sport we all recognise as we take our children down to the local court, field, gym, park, pool, rink or slope that ‘beginner’ needs are not the same as those of advanced and elite performers. The early lessons are ‘generic’, a one size fits all approach (with heavy dollops of ‘natural selection’). But for the more advanced the training must be tailored to reflect quite specific needs and situations that the player/performer must deal with.

That progression from ‘all class training’ to ‘small group and individualised coaching’ is not commonly noted in our litigator profession. Sure there are examples of senior litigators sharing their experience with established but less experienced, but there has been no discussion about either methodology or content. It is as though we litigators accept the absurd proposition that a modicum of instruction is all that is needed, that thereafter it is sufficient to achieve greatness by going to court a lot, and that our failures are never the result of our lack of learning but always to be blamed on something or someone else. I can imagine ( and hope to enjoy one day ) a good litigator who has another life as a top flight sports commentator writing a sizzling expose of this blindfolded approach to searching for excellence.

Something else that is not commonly noted is that the approaches to ‘advocacy beginner’ training have been evolving this past quarter century. Some would see these changes as undesirable mutations or heresies, but others would see them as opportunities to test new approaches, and to respond effectively to the changing perspectives of students. One such change is to recognise that ‘interaction with’, rather than ‘espousing at’ today’s learners is effective - if for no other reason than that the ‘espousing’ merely repeats what is on Wikipedia which can be read while looking at a You Tube clip on some other ‘awesome’ topic. It is the ‘doing’ and the ‘instant, constructive, incremental feedback critique’ in an atmosphere of ‘excitement’ created by the instructor which can’t yet be done ‘online’.

‘Doing what, when, why and how’ remain, however, the perennial questions for all advocacy teachers. This is so, regardless of whether the call is to run a course for keen high school students, trial teams in law school, early career litigators, would be appellate lawyers, or those few experienced lawyers who can admit to the benefits of some objective critique and coaching.

Answering those questions seems often to depend wholly upon a teacher’s chance entry point to teaching. Once admitted there is one ‘true way’. There is, therefore, no reason to step outside and inquire, ‘What else, why and how, might do this job as well or better?’

Moreover, despite being litigation lawyers and ‘evidence focused’, our advocacy teaching practices are not evidence based. We assess students but we don’t assess our methods. We could and we should run controlled experiments to objectively ascertain whether and why one approach produces stronger advocacy skills than another.

Fortuitously there’s an example in this week’s postings about ‘teaching juror selection’. I glean that ‘juror selection’ is a tail order component to advocacy courses, something to be attempted after questioning, objecting, addresses and case analysis have been done to death. Coming from a jurisdiction where there is no ‘in court’ juror screening process, apart from the using of peremptory challenges guided by uninformed ‘gut’ feeling (alas, I kid you not), my response to the postings by Stewart, Habas, Jourdan and Rose, is to feel cheated that I can’t start an intensive advocacy course with juror selection. Why would I want to do that? Because the listening, crafting of questions, careful manipulation and control, use of character cards (aka Easter eggs) by the class jurors, and attention to pre-determined objectives, seems to me to be such an exciting and robust way to introduce ‘would be advocates’ to fundamentals that carry over directly into direct, cross, and address technique. As an exercise it also appears to support a faster group dynamic than the usual topic flow engenders.

This advocacy teaching blog allows any of us to experiment and report the results. Judge Habas began a series on juror selection that has ‘exploded’ (like celebratory fireworks) into an enlightening and fascinating exposure of points of view and ‘how to do it’. So let’s take those ideas, try them out in addition to, or in place of, what we’ve been doing to date, and then report back: worse than my tried and true because….; no change; slight improvement over my past results because……; big improvement because….

It’s great to be able to confidently say, “The evidence establishes”. Copernicus is not the only person who can disprove shibboleths. We can too

Hugh Selby (c) January 2011

Becoming a Law Professor - Teaching Advocacy

Introduction

So you want to be a law professor.  You have questions.  I don’t know if I have answers, but I’d at least be happy to share my own experiences in the hope that you can learn from them.  I am approaching ten years of full time teaching, three for the United States Army at the Judge Advocate General’s School and going on seven years for Stetson University College of Law.  I am a tenured professor who holds the position of the Director of the Center for Excellence in Advocacy and the title of Professor of Excellence in Trial Advocacy.  How did all that happen?  Good question.

To quote my father, “Even a blind pig finds an acorn from time to time.”  At the risk of exposing an even greater lack of complexity to my thought process than most of you already assume, I’m not completely sure myself.  To make it even more difficult, how do you not only get to become a law professor but also get to teach practical law and skills that your students will actually use long after they graduate from law school and pass the bar?  I often pass this question this off with a “just lucky I guess” comment, but truthfully luck did not have very much to do with it. A mentor of mine once told me that hard work + good luck = success.  I believe that is true, but in the universe of law professors there is not enough luck in the world to avoid the hard work you must do.  I thought it might be helpful to some of you if I were to go through how it happened for me.

By the way, my comments are directed to those of you who wish to become full time professors, in a future post Chris will be blogging about becoming an adjunct.  Let me just say that it is impossible to run a law school without an excellent adjunct faculty and the ones that I work with are incredibly good.  I was an adjunct once myself and I understand and appreciate the contributions they make.

Understanding Law Schools and their Faculty

The legal academy is an interesting place, filled with all of the levels of competition and complexity that you would expect to find when you have a group of extremely intelligent people who have always managed to rise to the top of any organization they have been a part of.  There is also a great deal of preference; some would say bias, towards professors who are also graduates of an “elite” ivy school.  This usually means Harvard and Yale, with a few others thrown into the mix, much like seasoning in soup.  Do not despair if you are not a graduate of one of those schools, it just means that you need to be intelligent in the way you package yourself, through both training and work experience, to showcase your talents.  The challenge for those of us not blessed to graduate from these institutions is often one of “getting in the door” and explaining how our practical experience has value in the academic world. Some excellent articles have been written on the general subject of becoming a law professor, the American Association of Law Schools has one that, although dated the last time I checked, is well worth reading.  See www.aals.org. 

Some of you may have heard that legal education is on the cusp of great change.  Perhaps you serve on a committee in the ABA or have read some of the reports that push for more practical training at law schools.  I agree that this may very well be the future of profession.  It is certainly sure that we live in uncertain times and that the changes already experienced by major law firms and other elements of the profession may very well transform what it means to be a law professor.  While that day may come, as of the day of this post it is not here yet in most law schools where you might attempt to teach.  My personal opinion is that this change has been coming for some time, and I expect that the sea change in the practicing bar is now making its way to the hallowed ivory towers of academia – the question is how high the wave of change will reach and what will be left in the wake of it.  For now I am focusing my comments on what I have experienced historically.  I will leave for another day any predictions of how the future might look.  If you are thinking about teaching law you are concerned with the here and now.

Like most law students I had thoughts of becoming a law professor in law school, but really did not begin to act on those thoughts until I was assigned as a law professor at the Judge Advocate General’s School in Charlottesville Virginia.  There I learned that scholarship and an ability to display excellence in a niche area that law schools have interest in was the key to the kingdom – so to speak.  I knew that my niches were criminal law, evidence, advocacy and professionalism.  It is helpful if one of your niches is something that a traditional law professor does not normally develop.  Skills courses; advocacy, legal writing, and experiential learning are the most likely candidates.  Armed with this knowledge I started a five year plan to make myself as attractive as possible to hiring law schools (I know that those of you who are my personal friends are laughing at the idea of me making myself attractive, but there you have it). 

Becoming an Effective Law Professor

There are three elements that you must master to be an effective law professor, teaching, service, and scholarship.  Most highly ranked schools pay lip service to the first two and worship at the altar of the third.  The schools that produce practicing lawyers are more concerned with all three, but even there you have to be able to write.  To become a member of the academy you must find a way to establish your own bone fides in the area of scholarship, regardless of the relative ranking of the school at which you wish to work.  The other two can be developed later, but you will never get that opportunity if you don’t show that you can and will produce acceptable law review scholarship.  Faculties know that not everyone can write the type of articles that law schools value so this becomes the defacto tool used to separate the wheat from the chaff.  I am not arguing that this is the best measure of a law professor’s quality, or even that it is an accurate measure, but it is the current standard and you must meet it.  There are good reasons for this approach, but the discussion of why goes well beyond this post.

Your work experiences, the quality of your teaching and prior service to the profession will become plusses that you might use to convince a faculty to take you when you did not graduate from an elite law school or have not published sufficiently erudite scholarship, but they will not carry the day without the scholarship component.  To paraphrase a great teacher of professionalism, “There is no try, only do.”

So what kind of academic scholarship is worthy of consideration by a law school?  It is one thing, and one thing only – articles published in a law review.  Not only must it be law review articles, but they must be placed in the highest ranked publication possible.  Why?  The answers to that question are complex and serve as the subject of many a law faculty barbeque, but for now you just must accept this fact and act on it.  This doesn’t mean that you cannot write case files, casebooks, legal treatises or other practical publications.  But if you want to be a law professor you must first carry the heavy load of writing law review articles.  You actually need to carry that load for the entirety of your career, but you can do the other stuff once you have shown the other members of the academy that you can do what they value most.  Think of it as establishing “street cred” with the decision makers who decide whether or not you will get the job.  There are lots of places on the net where you can learn about writing law review articles.  You might want to check out http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577346 or http://lib.law.washington.edu/ref/lawrev.html.  Both are good resources.

Putting your Best Foot Forward

In addition to developing your academic writing chops, you want to increase the quality of your niche appeal.  I chose to do this by developing my advocacy teaching skills.  I attended NITA’s “train the trainer” program, taught at the JAG school, and looked for opportunities to teach advocacy in a law school environment.  I was presenting a speech about terrorism at Notre Dame Law school when Professor Jim Seckinger invited me to come back to teach in his intensive advocacy course.  This meant taking a week of vacation (actually leave since I was still on active duty), providing my own transportation and housing, and working all day long for five days straight.  I jumped at the opportunity and am forever grateful to Jim.  It was literally the beginning of a great post Army career. 

I learned a great deal working with Jim during the next two years, and I was able to put adjunct faculty, Notre Dame Law School, on my curriculum vitae. I also reconnected with civilian academia. My law school professors took the time to mentor me once they knew that I wanted to become a law professor, and much of what I am sharing with you first came from them.  Professor Robert Blakey was particularly helpful.  Between Bob and Jim I acquired knowledge and experience, now all I needed was a bit of luck.  During this same time I was also writing, and more importantly, developing a long term research and writing agenda that I could discuss with any law school that was considering me as a candidate for a teaching position. Eventually I participated in the AALS hiring process.  That is an entirely separate post.  Finally I was offered, and accepted, a position at Stetson University College of Law as an assistant professor on a tenure track.  My teaching package included professional responsibility, criminal procedure, evidence, and trial advocacy.  

Lessons Learned

So what can those of you who are thinking of becoming a law professor who teaches advocacy take from my comments? 

First:  There is a reflective component to this profession that requires you to be able to express your thoughts in the preferred medium – law review articles.  These articles are qualitatively different from other types of writing and you must learn to speak the language of the profession to be accepted as a potential member.  Time that you might spend bemoaning this fact is time better spent writing the article you are complaining about.

Second:  Where you went to law school matters, but it is not necessarily dispositive.  You must acknowledge that certain schools, and certain faculties regardless of the school, are so enamored by the presence of an Ivy League law degree that they will not consider any other graduate.  You cannot do anything about that, short of getting an L.L.M. from one of those schools.  You should focus instead on the positives you might bring to the table – if you write well enough your origins can be overlooked.

Third:  Dance with the one that brought you.  You must have a certain degree of ability in a niche area that meets the law school’s needs.  Key areas where practitioners excel include professionalism, advocacy, and upper level law school courses that require actual understanding of how the law is currently being applied.  Once you identify that niche develop it.  Write in that area, attend conferences or programs that will help you develop that specific skill and then approach your law school alma mater about chances to volunteer or teach as an adjunct.  NITA is a great place to begin that process, we have a conference at Stetson I’ve mentioned in other posts that can also help.  

The ability to influence a group of minds as they struggle with the depth and breadth of what it means to be a member of our profession is a blessed experience, I hope that this missive has helped you think about what might be required to achieve it.

All the best,

Charlie

Teaching ‘Advocacy’ [aka persuasive communication] across the Law Curriculum.

They say that, “hope springs eternal”, that “ what goes around comes around”, that “ there is nothing new under the sun”. How true those remarks ring when someone, anyone, starts talking about advocacy within the wider law curriculum.

That campaign was lost when the profession handed over the teaching of law to academics, those being a class of people for whom ‘advocacy’ is a mere skill, something less than an intellectual challenge.

Sure there are teachers who bring ‘advocacy perspectives’ into teaching evidence, procedure, criminal law. And sure there are students who find that exciting, but it’s not mainstream. There is not, and will not be, any majoritarian push by law academics to build their substantive law courses around the structure of a litigation case file. Why not? Because, in case you hadn’t noticed, most academics are not fighting with the spoken word in public places. Their battles take place in journals and competing text-books. Incremental success is seen in the changing perspectives to be read in successive volumes and editions. By contrast litigators revel in public, speaking combat.

Hence to propose to one’s academic colleagues that there be more advocacy across the curriculum is a form of career stunting. Your career may not wither, but it will not flourish and the fruit will be sparse.

There is, however, another way, an approach more likely to bring success and one that uses all those skills that we bring to advocacy training.

Every good advocate understands that ‘manipulation’ is art not trash. Let us not fail because of mere antipathy to a word. Replace ‘advocacy’ with ‘persuasive communication’ and every ambitious academic is interested. From among all those articles submitted to the top category journals they want theirs to be chosen. You can help.

That quest is more likely to succeed if they apply the generic basics of our craft: what are the needs and wants of their target ‘commissioning editor’ audience? Are the aims of their article clear and of interest to that audience? Have they adroitly prioritised and melded the issues of law and fact that are the foundation substance of their article? Have they anticipated what the opposition will assert? And, that done, have they refuted or minimised its strength? Are their citations from appropriate sources and used in the right places? Do they draw conclusions that flow from the facts and the law, are compelling, succinct and memorable?

Those academics who are drawn to ‘empirical research’ must venture into the dangerous realm of talking to people, getting those targets to give up facts and opinions. There’s a skill to doing that – whether it is designing a questionnaire, planning an interview, or obtaining ethics approval. The basics of that skill are the generic aspects of the questioning skills that we teach: knowing the topics, settling the interviewee, asking the right mix of open, closed and ‘in-between’ questions, use of repetition, facility with listening, topic transfers, encouraging the story, and so on. Don’t call it direct, cross, or redirect. Call it, ‘collecting comprehensive, relevant, reliable data’. Now re-read Judge Habas’ two articles on jury selection and see the links between what she is explaining and any half way credible empirical research project.

So, how to get academics to relish this approach? In this age of ‘every member of faculty must have this and that role’ all advocacy teachers must volunteer to wear the hat of ‘Publishing Facilitator’. Each semester there must be one or two ‘brown bag’ lunches at which the ‘Publishing Facilitator’ chats knowledgeably about the checklist that every academic must tick off as they plan their research, as they draft their article, and before they submit the final version for publication. The ‘Publishing Facilitator’ must collect intelligence about the ‘needs and wants’ of the favoured journals and share it with colleagues on a ‘need to know’ basis and also on a ‘how can I advance my own career by careful favouritism?’

Another aspect of being an advocate, one quite unnoticed by academics, is prowess in juggling. Ideas, facts, cases, propositions – they must all be known, but they move in space and time, sometimes to the foreground, sometimes in the rear, until the magic of closing brings the cement. It’s that juggling which allows the advocacy teacher and publishing facilitator to seize the chance and volunteer to co-ordinate the teaching of ‘research skills’. Get somebody else to teach the nitty gritty of how to research. That done, run a class or two on how to prepare, draft and write essays and exam answers. Surprise – the very same skills used as publishing facilitator come out again, albeit with some different names.

And now look at what has been achieved? You, oh blighted advocacy instructor, have become indispensable. Your skills in teaching ‘persuasive communication’ have permeated your school, reaching across teachers and students. They have been infected with ‘advocacy’ without knowing it. Wonderful what can be done with a little manipulation, or ‘marketing’ for those who prefer to be a touch coy.

[This essay records the advice of Odysseus and the soldier Siron given to the writer in a recent dream.]

Hugh Selby © January 2011.

Reaching for the Tingle....

Dear Friends:

I have been thinking a lot lately about what really exists at the core of my approach to teaching advocacy. Why do I do the things that I do? I must confess that the approaches that I love the most are the ones that stray far afield from accepted practices, but I console myself with the belief that they are grounded in other fields from which all advocacy professors might want to learn. I am always questing for something more. Like all of us I can nail the NITA critique in my sleep, but I have done that more than once and felt that I let the person I was trying to teach down – I had not gone far enough into the darkness with them to help them see the light. I have come to believe as a core value that if the student is brave enough to try then I should be brave enough to teach them, using whatever method is necessary in that moment to make a difference for the student.

When I first started teaching it was with other attorneys that worked for me. I was always focused on the end result – the trial. The personal dynamics between the client, the witnesses, the advocate and the judge were always fascinating and we worked hard to find the message that would prevail for that specific set of circumstances. From time to time we would do the obligatory NITA style training, but almost as an afterthought.

Over time I turned to fundamentals as a way to create a baseline level of competency, and I still love advocacy fundamentals as the starting point for everything I teach. I even titled my trial advocacy text “Fundamental Trial Advocacy,” and I firmly believe that some of our skills should be automatic. A good critique on something as simple as word choice, body position, filler words, pauses, or any of the other “bread and butter” teaching points is always time well spent – but it rarely makes me tingle. I reach for the tingle whenever I can – do you?

What do I mean by reaching for the tingle? The tingle is when the student has a breakthrough. That breakthrough can be skill performance specific, a deeper level of personal understanding, or a connection with the other participants. These teaching moments come when you see that the student has an issue, but you know that the fix for that problem is going to require you to trust the student, possibly embarrass yourself, and risk failing in front of a group of students to whom you have been identified as an expert in the field. Do you reach? Do you grasp for that moment? Or do you turn away into the safety of something else?

I think the students know when we go out on that limb with them. I believe at an internal level they appreciate it when we expose ourselves to failure, to ridicule, to judgment – just as they feel exposed in that moment. That is a gift that the teacher has the power to give to the student - and it gives them power in a place where they feel powerless. I like to think of it as a student centered approach, and it reflects some accepted paradigms of adult experiential learning. They become responsible for their own learning. Let me share how I go about it.

I usually start by asking the student how that felt, not how they think they did. I like to begin with reflection by the student because it helps me see where they are in their growth. Different students will focus on different things. How they focus, what they focus on, and the way they choose to share it all present opportunities to help me identify the right teaching moment. I build outward from the things that they share with me because that often identifies the “thing” that needs to be addressed. I combine this with the observations that I have made about that student over the course of the program. There are many different opportunities to get to know these students, each of them are moments that provide me with information that becomes crucial when it is time to reach them.

I want to get them into the moment of the performance so that together we can identify what canbe encouraged to grow, what should perhaps be pruned back to a reasonable level, or sometimes completely weeded out. I rarely ask the student how they think that went because they are usually hypercritical or simply blow the answer off. I want to know what they were feeling when they did it, physically, emotionally, mentally.

After they tell me I ask them if they will give me permission to help. Once they give it, and they always do, I ask them again how they are feeling – starting with their current physical state. This is the point where they begin to become responsible for what they are about to discover. Sometimes I get push back. When that happens I have them take a deep breath, close their eyes and picture what just happened. I then ask them to share the physical sensations they were experiencing while they performed. I focus them on action verbs, clear descriptions – the same word choice issues that we teach on direct examination. I then build my next question off their response. They are often very quick to identify what is bothering them, and it opens to the door to my advice. We begin to work together to solve their problem in a way that they accept and can implement. This creates a short back and forth that is really a shared conversation. It is also a sharing of the spirit, an acceptance of our shortcomings and recognition of the trust that we are placing in one another as teacher and student.

These become transformational moments in the life of the student – if they are ready for the transformation. Remember those moments in the courtroom when everything slows down, the words flow and you hold the jury, or the witness in the palm of your hand? Remember that feeling that you had when everyone in the room knew at a primal level that something very important had just happened in court? You can have that same feeling when teaching – all you have to do is reach for the tingle.

Enjoy!

Charlie

Becoming an Advocacy Teacher

Another gem from Mark Caldwell, NITA's Director of Specialty Programs.

THOUGHTS ON BECOMING AN ADVOCACY TEACHER

People contact me on a regular basis volunteering to teach for NITA. Often times I give them the NITA party line, “It’s best to attend one of NITA’s Teacher Training Programs so you can appreciate our process of teaching.” Sometimes I talk with them about their experience in the courtroom and where they have previously taught. Depending on the particular needs of my programs and their experience I may offer them an opportunity to teach.

In honesty, it is difficult to break into advocacy teaching. Program Directors or school administrators tend to stick with people they know and who they are comfortable with at their programs. It is not so much a “club” as administrators not wanting to take risks. It is easy to invite people you know and like. Those who appreciate the system and who have been successful at previous programs are regularly invited to return.

The Catch Twenty-two of the process is there are fewer and fewer cases going to trial. Getting trial experience is becoming a real issue for younger lawyers. The economy has also had its impact on advocacy teaching. Registration numbers at programs are lower than in the past. Programs are being cancelled. Budgets are tightening so Program Directors must be highly selective in who they choose to teach - only the best get invited when a program is half the size of past years. Likewise, teaching opportunities are shrinking. Even with law schools attempting to shift to experiential learning there are simply a finite number of courses being taught.

Counter to these trends is the harsh reality that many of the “stalwarts” are getting older. In the not too far future NITA, and many other organizations, will find they have exhausted their supply of teachers as many gracefully go to retirement. Recognizing the “graying” of the organization NITA encourages its Program Directors to recruit new teachers. From my own perspective it is still difficult to take the risk of inviting someone who has never taught before.

Does this mean you should be discouraged and not even attempt to teach? No. There are opportunities to teach and if you want to become a teacher you should reach for your dreams. It just means you will need to work hard to achieve your goal. Here are my thoughts on what someone should do if they want to teach:

1. Become a student of advocacy. If you have not attended an experientially taught advocacy program you need to either attend (regardless of your experience) or ask if you can observe for a day. Advocacy teaching is not about experienced advocates pontificating about how they became successful. It is a very scientific process that works based on how people learn. You need to appreciate how programs work before you can be successful at teaching. The stock line about attending a Teacher Training program is more than lip service. Those who extend invitations to teach pay attention to such credentials - especially if they are accompanied by a recommendation from someone who taught at the program you attended.

2. Master the process of constructive critique. NITA employs a four part system in its teaching. Other successful programs use their own systems. There may be no one right way to teach but all of the systems I know use a process that A) Identifies the specific problem; B) Describes the problem with enough specificity that the student can not deny that she was performing in the way described; C) offers a genuine fix to the problem so that the student can change their behavior in the future; and D) provides a reason why the student should change her behavior.

Is this a lock-step approach? Of course not. The very best teachers I know vary from the process. The one connecting theme is they all follow it more than they deviate from it.

3. Dissect what you do, or someone you admire does, when experiencing success at trial. Great teachers are able to break down the component pieces of each skill utilized at trial. Not only do they know what works and does not work -- they can explain why this is the case. To be a successful teacher you must be able to clearly, and succinctly, tell someone how to perform and why it is important that they do it as described. Start your process immediately. Yes it takes some of the spontaneity out of your practice but it makes you a far better teacher than going on instinct alone.

4. Observe other teachers. Studying how others teach helps you develop your own skills. Even the greatest advocacy teachers borrow ideas from others. There should be no pride of authorship as you develop your own repertory of comments. Attribution is always appreciated but over the years I’ve come to find that many have laid claims to some of the best teaching comments, drills, demonstrations, etc. The bottom line is if something is effective in teaching another how to master a skill - make use of it.

5. Deliver your comments with a positive spin. I’ve seen two teachers deliver the same suggestion to participants at a program. One offered the diagnosis and solution as something the student had done wrong and the other suggested the same fix as a way of helping a solid performance become a stellar performance. The delivery with a smile was met with appreciation while the other was viewed as hyper critical. Creating the atmosphere that I’m here to help you improve versus I’m here to teach you how to do it right is significant.

6. Learn to offer comments efficiently. Time is always a factor when teaching. As much as we like to believe it is our comments that turn students into great advocates, the reality is performances are what help students improve. Certainly teacher comments give direction and help students make a determination of how best to perform but it is repetition that actually leads to mastery. Keep in mind the cardinal rule that one or two points are all a student can recall and integrate. Your comments should be efficient and to the point. The more time you spend talking the less time your students perform. Don’t steal their time.

7. Develop effective demonstrations. The best demonstrations do not overpower students. Your goal should never be to have students say, “Wow, I could never do that!” Instead, following your demonstration students should say, “Wow, so that’s how you do it. I think I can do it too.” Your demonstrations should illustrate the component parts of each skill. Offering too much in a demonstration is like offering nothing. If students can’t recall how to do something the time is wasted.

8. Play well with others. Team teaching can either take everyone to new heights as instructors play off each other, or suck the very life out of a room as teachers compete to show students their intelligence. Cooperative teaching lets both instructors star and ensures that students get the most from their performances. Learn to communicate both in the teaching room and outside. Nothing frustrates students more than instructors who appear disorganized and not ready to teach. Make sure you share coaching responsibilities. Remember that teaching is not about the teacher but the students.

9. Let people know you want to teach on a regular basis. Squeaky wheels get attention and so do people who make it known that they want to teach. This is not to suggest that you pester Program Directors, Academic Deans, or colleagues who teach. Do let people know you want to teach. Check calendars and make your offer timed to when invitations are being extended. You are more likely to get your opportunity if you time your contact to about two to three months in advance.

10. Do not say no. When your first opportunity presents itself you had best say yes. Your acceptance speaks volumes about your interest while your declining suggests perhaps you are not as committed as you indicated. If you have a great reason to say no then make sure you clearly explain why you are not available. Ask if you can substitute at a time when you are not otherwise engaged. If you are lucky you may get a second invitation. I never ask someone to teach more than twice.

Do not think you will always get invited to the big show as a first opportunity. Program Directors often give people an opportunity at programs where expectations are lower. It may be the subject matter is not your favorite or slightly outside your comfort zone. Say yes and work hard to succeed. Many professional athletes and actors toil in the minor leagues before they get the chance at the highest level. You should do the same.

Teaching, like being a student, is a lifetime occupation. The best teachers I know are always looking for new material, considering how to more effectively communicate an idea, refining their presentations, and talking with others about the process. I can think of no greater reward than helping someone improve their skills. Each time I teach I mentally thank those who helped me learn both the skills of advocacy and the craft of teaching. Each time I teach I leave the course with a feeling of accomplishment and my emotional and intellectual batteries recharged. I highly commend the process and encourage those who are interested to take the steps necessary to be become effective in the classroom.

What 'We' the Teachers Owe to our Students

Another great post from Mark Caldwell at NITA.

What do we owe our students?

I just finished teaching a program where many of the instructors had not received any formalized teacher training. All were experienced trial lawyers and genuinely caring individuals who wanted to help improve trial skills. I was struck by the number of comments that began with “I really liked what you did....” This was followed by additional comments such as “You asked good open ended questions and the witness seemed engaged with you. Keep up the good work.” I observed the disappointment in the eyes of the students as they recognized this experienced trial lawyer was not actually going to offer them any assistance.

It is not that these comments were disingenuous - those complements were rooted in truth, as many of the performances demonstrated a working knowledge of the skills we were focusing upon. The students and I were disappointed the instructor failed to find a teachable moment in the performance.

Just what is it we “owe” to students when we teach? Our obvious goal is to help our students gain knowledge and improve their skills through experiential teaching.

I believe we “owe” a number of things to those we teach. Let me give you my list:

1. Honesty. We all want to be “liked” by our students. Does this mean we should cushion the blow of a diagnosed issue with some sugar? I believe the answer is no. The common refrain in today’s teaching is choose one point and offer a strong solution to the problem. When we front our comments with a throw away point it diminishes what we really have to say. Students recognize this fairly early in a course and learn to not listen to this first does of pablum. Often program evaluations suggest students wish some instructors would be more forthright and probing with their comments. They attend to learn and our job is to tell them how to improve. We need to honestly diagnose problems and offer solutions. There are times when a positive comment is warranted. By using it as a teaching point for the others we maintain our honesty as well as continue to teach.

2. Being prepared. If we expect our students to know the facts of the case and to be ready to perform we owe the same to them. This means we should read the case file and know the facts before each class - even if we have used the file many times before. We should be ready to perform in the same way as our students. This means every instructor should be able to stand and deliver the same performance as our students. Preparation also means reading the schedule and understanding the teaching goals of each session. If someone else developed the schedule and you do not understand the goals we owe it to the students to find out what is intended. If there are teaching notes, read them (even if you read them during an earlier program). Attend faculty meetings.

3. Think about the skills you teach. So many instructors have told me they never consider what they do at trial. Whether teaching, or practicing, we have an obligation to our students or clients to consider how best to persuade. If you have never considered why you do something I can not imagine you can explain how or why you “do that thing you do.” Reflection is one of the key points of adult learning theory. It helps you recognize why something worked or failed. It helps to cement the experience in a way that allows you to employ it in a similar or, in the case of failure, a new manner. If we expect students to reflect on our teaching we should do the same for them.

4. Be positive. There are always two ways we can deliver a message. The spin we place on our comments can give a student encouragement or suggest they are failing. When I watch the best teachers offer advice I notice they are always presenting the information in a way that suggests a student can build upon what their performance. Granted, there are some performances that offer little from which to build. Just the same, if you offer a ray of hope it helps. Recognize that most students believe experiential classes are far harder than representing someone at trial. They bring an extra level of anxiety to their performances because they are afraid they will embarrass themselves in front of their colleagues (and sometimes those who control their destinies). Offering someone information that allows them to take their skills to a higher level is far different then suggesting they did something “wrong” and you will fix it.

5. Be on time. Judges do not tolerate tardiness. Neither do our students. Start and end your class sessions based upon the schedule. When you are ready to go and start on time it sends many messages (including one of professionalism). When you end on time it allows people the full measure of their breaks, lets them get to the next class on time, or even allows them to pick up children from day care without paying added fees.

6. Follow the method. There are various schools of teaching in experiential programs. Regardless of which method you employ - use it uniformly. We are taught from the first day of law school that one of the reasons our system works is because of predictability. The same is true about our teaching. These models work and are based upon serious research and refinement. After a few classes our students expect we will follow the process.

7. Do not unfairly change the schedule. Students have spent time preparing for class. When you change the nature of the exercise or fail to allow them to do what they have prepared you send the message - don’t prepare. If you wish to modify the schedule let people know in advance so they can prepare accordingly and be successful. If you plan to change on the fly, follow the schedule for the first set of performances and then make your alterations. The process is frustrating enough without you changing the rules.

There are most likely many other things we owe our students and colleagues as we teach. This list is not exhaustive. Some may disagree with my inclusions or ideas. My goal is to spark a dialog. I look forward to hearing from you.

Our Students as Teachers and Critics

I admit to being a slow thinker, rather slower than those witty, quick come back people who keep a party crowd, a pack of journalists at a press conference, or a jury panel nicely entertained.

So slow am I that it’s taken years to pull the threads, join the dots, and point the finger at the stubborn wrongheadedness of our student critique approach. But I’ve got there at last and, being these days a bit forgetful, I hasten to pass these comments to you before their existence is unknown to me.

What we do as teachers is to take a student’s performance and critique it as though the only participants inside the performance circle are the student and the teacher. The student jumps none too elegantly through the hoop and then, by one formula or another, we tell them of one or more imperfections, explain the ‘why’, and then tell and maybe (if we’re brave, or egotistical, or both) perform the solution. Meantime the audience of other students sits outside the ring and – if we’re to believe the popular culture – think about you know what (they were lucky, or they weren’t; they want to be lucky and maybe if they just…; and it’s not trial advocacy!).

We, the teachers, have to bring everyone into the ring. There’s no time, no excuse, for passivity or being mentally some other place. To watch and listen is not too learn. To learn one has to take the chance, to try, to fail, to try again – just as we did as we learned to walk. Every one of our students – whatever their advocacy experience - has a lifetime of communication experience to draw upon in advocacy exercises. It’s a part of our job to draw upon those experiences and give them additional use – as resources in preparing and running a trial.

This past year I’ve taught classes of from 16- 80 or more students with more success in terms of demonstrated skill development than ever before, but with no other traditional teacher help. What’s the secret? There isn’t one: I just made every student a teacher from experience, just as every successful solo teacher in remote schools has done for aeons.

Here’s an example. I want each student to develop their template for asking a witness on their side about that witness’s sighting of someone around a crime scene. To set the scene I perform a simple role play in the teaching room; for example, leaving the room and shutting the door, then knocking from the outside, opening the door, looking around the room, uttering some swear word, and leaving by slamming the door. I do this routine two or three times so as to ensure that everyone in the class has adequate opportunity to master the ‘facts’ and the sequence of them. Of course they are quick to notice if I miss a detail on iteration two or three.

Developmentally this poses such skill issues as: the student being able to see the scene in 3D as the witness experienced it and can ‘see’ it again if the questioning is good; incremental picture building so that the audience gets just one detailed, moving, 3D picture of the episode; setting a baseline from which the witness describes what they saw and heard, that baseline being ‘visible’ to all third party listeners; creating, authenticating and tendering a diagram; why multiple copies of that diagram are needed so that this witness and later witnesses can put marks on the diagram and so create additional exhibits; how to use present sensory impressions of everyone in the court room to convey common understandings of distance, sight lines, length of opportunity time, and degree of illumination; asking the witness what is her or his strongest recollection about the ‘someone’ and then moving from that point of recollection to the witness’s next descriptive recollection; and pointing out the problems with asking a witness about recollection according to some formula which, unless the first question matches their best memory, dooms the witness to repeated failure.

My job is to facilitate the students exploring these issues in turn, by their making suggestions, trying them out, seeing and hearing what works and doesn’t work. I offer explanations that bed down their experiences as acts to practise or acts to avoid. I am a ringmaster - but to many, not one performer.

And so as a collective we work our way through the challenges of technique and personal style. I invite each student to make their own notes as we go, sufficient to enable them to get it right the next time and the time after that. Then as the Master of Ceremonies I tell them where we’ve been and that lets them double check their memory cues to be sure they have noted enough. Mission accomplished as everyone has been a player, moving through a variety of learning and teaching roles.