Teaching Trial Advocacy in Africa: The Magic of Mombasa

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.

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.

2015 EATS Retrospective

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.

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.

14 resolutions for 2014 by Wes Porter

The following guest post is by Wes Porter, Director of the Litigation Center at Golden Gate University School of Law in San Francisco and is reprinted with his permission.

Golden Gate University's 14 New Year's Resolutions for Law Schools in 2014

SAN FRANCISCO, CA -- (Marketwired) -- 12/30/13 -- New Year's resolution-making isn't just for people, but should be a requirement for higher education, particularly law schools, according to Professor Wes Porter, Director of Golden Gate University's Law Litigation Center. "Law schools that continually embrace fresh teaching techniques graduate the smartest students possible," says Professor Porter. To help law schools kick-start 2014, he offers 14 New Year's Resolutions for Law Schools:

1. Experiential learning is required. Clinics, externships, and simulations are now mainstream in legal education and, even before it's required by the bar or ABA, law schools must offer students the opportunities for real-world lawyering.

2. Assign lectures as homework and use classroom time for more application, exercises and problem-solving. Law schools must embrace "flipped classrooms," "blended learning," and YouTube: http://www.youtube.com/user/wporterable?feature=mhee  

Is it Advocacy Appreciation or Advocacy Skill that we seek? An EATS 2013 forum.

“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we've been waiting for. We are the change that we seek.” 
― Barack Obama

Is it advocacy appreciation or advocacy skill that is a foundation step in 21^st century legal education?  That is the question.

This paper proposes that ‘advocacy appreciation’ ought to be a core element in first year law school programs, but that our trial and appellate advocacy programs should be packaged as part of a litigation stream, with other streams being taken by those students with a more transactional bent. 

There’s a touchstone survey that we advocacy teachers must conduct, a survey of all those trial and appellate judges who take clerks from just graduated law students.  We should be asking those judges how they rate an applicant’s participation in pre-graduate legal skill activities including paralegal work, trial advocacy, and mooting.  Do they distinguish among those activities?  How do those activities rate against such other criteria as law school ranking, academic grades in substantive law subjects, sporting clubs, community activities etc.?

You Look Just Like "Boo": Anthony Murray's Speech to Students at Southern Illinois University

One of the best parts of my job is serving as a faculty advisor to Southern Illinois University School of Law students who work with the Illinois Innocence Project (IIP).  The IIP is a unique organization that involves all three public law schools in Illinois, as well as undergraduate and graduate students at the University of Illinois at Springfield.

Last fall, the IIP was able to help secure the release of Anthony Murray, a man who was wrongfully convicted of first-degree murder in 1998 and served 14 years, 11 months and 3 days of a 45-year sentence (link to stories about his case and release here). Murray did not receive a full exoneration. Rather, after his conviction was dismissed, the state's attorney for Marion County, Illinois, brought charges again but offered Murray the opportunity to plead no contest to 2d degree murder in return for a sentence of time served. Murray chose the certainty of going home to facing trial a third time in a system he no longer fully trusted. (If you read some of the articles in the above link, you'll note that no one in the IIP was satisfied with the offer from the state's attorney, but Murray did not want to risk a third trial in the same county, with the same perjurious witnesses, for the offense.)

Murray spoke to the students at SIU this afternoon. As with all exoneree presentations I've observed, his speech was inspirational, heartfelt, and heart-wrenching.

Our target should be the students, not law schools

When Charlie Rose writes about the intertwining of law theory and practise (see here, this blog 1 April 2013), when earnest legal education reformers sign off on lengthy reports that bewail the gap between casebook law classes and the real world, when law firm practice managers complain that their new graduates are bright but useless, they are preaching to the converted and no one else.

There’s no mass law student movement clamouring by petition, or by social media for a more practical legal education.  That’s hardly surprising because so many law schools don’t do anything to show that practise for practice matters.  Moreover, out in that real world of practice, poor problem definition, bad advocacy, inept negotiation, and drafting by precedent- not -understanding are the daily fare.

Storytelling, Experience and Prosecutorial Misconduct: A Response to a Reader E-mail

A couple of days ago, I received the following email from a blog reader in response to my blog post about using a Youtube clip of a story from the television series Breaking Bad to help students see good storytelling in action: 

Interesting - Please relate your views of story telling with your recent posts concerning perceived prosecutorial misconduct in criminal proceedings and put all of that in context to the trials you have either prosecuted or defended.  Would also be interested in civil experience.

Please be specific to assist us in assessing your analysis.  Would you agree that experience is the best teacher?  Looking forward to your continued analysis.  

This is an intriguing email. I found it thought-provoking. The author asked me to link some subjects together in a way I hadn't thought of before, and so I've spent the last couple of evenings thinking about how to relate storytelling with my thoughts about perceived prosecutorial misconduct. 

Context

Let me start with the context question. Nearly all of my live courtroom experience (to this point) occurred during my service in the United States Army JAG Corps from 1995 to 2006. During that time, I was a trial counsel (military prosecutor) for about 18 months at 10th Mountain Division and Fort Drum, New York, a defense counsel at Fort Drum for about a year, and a senior trial counsel for a little more than six months at Fort Riley, Kansas. I also served as a part-time military magistrate at Fort Riley for over two years, conducting pretrial confinement hearings and issuing search authorizations. In addition, as the chief of administrative law at Fort Riley, I was a legal advisor to numerous summary court-martial officers.  

As with any young JAG officer with a similar service profile, I had many opportunities to try courts-martial before military court-martial panels (sometimes called military juries, though the term is a bit misleading) and military judges.  I also tried a number of administrative board hearings, both as a "prosecutor" (the Army term for the prosecutor in an administrative board is "recorder") and a defense counsel. I didn't keep track of the numbers of cases I handled in these positions, but I would estimate that I was involved as counsel in several dozen courts-martial (this includes both fully contested cases and guilty pleas--which also contain a contested sentencing phase) and a couple dozen administrative board hearings. 

The last four years of my military career I was stationed at the US Army JAG School in Charlottesville, Virginia. I taught evidence and trial advocacy in the Criminal Law Department there, taking over for Charlie Rose when he left the JAG School to become the Deputy Staff Judge Advocate at Fort Eustis. (As an aside, Charlie and I have been close friends for close to fifteen years now, ever since we first met at a US Army Trial Defense Services conference in 1998.)

During my time in the military, I had the opportunity to receive some of the finest advocacy training available in the United States. I believe the Army's Criminal Law Advocacy Course, which I took as a young captain and taught several times as a young major, is one of the premier advocacy courses available anywhere. In addition, as both a prosecutor and a defense counsel, I had numerous opportunities to participate in additional advocacy training opportunities and conferences. 

As a defense attorney, I was well-supervised, had a manageable workload, and had access to investigative and research resources that were truly top-notch. If I needed something, it was available to me. Sometimes I'd have to file a motion and work hard to get it, but the military takes its criminal justice system seriously, and looking back on it, sometimes I'm amazed at the resources that were available to me.

During my time in the military, I personally faced just one case that, in my opinion, involved prosecutorial and investigative over-reaching. I would not say that case involved misconduct, just a level of obtuseness and indifference that could very well have led to the conviction of an innocent man, physical evidence to the contrary notwithstanding. 

The case involved a false confession to a rape.  As a defense counsel, I was able to hire, at government expense, one of the top three confession experts in the United States to assist me. Because my caseload was manageable, I had the time to research and prepare my case, and I prevailed at trial. A few days after the trial, one of the military jurors approached the chief of military justice at the installation and delivered a reprimand for even bringing the case to trial in the first place. Although there was physical evidence linking someone else to the rape (and no physical evidence linking my client to it), the government steadfastly refused to consider the possibility that anyone else could have committed it. After all, my client had confessed! No one confesses to something they didn't do!

I fervently hope that I never committed prosecutorial misconduct. I do know that I was a much different prosecutor my second time in the position. After serving as a defense attorney, I was much less interested in filing lengthy charge sheets against an accused. I think my case analysis skills and ability to consider justice from different angles improved as a result of my defense experience.

I do not believe my experience in the military was exceptional in any way. For the most part, the military justice system is a fair system in which the rights of the accused are scrupulously protected. There are exceptions to this general rule. I believe the Bradley Manning case, currently being tried, may well be one of them.

Since leaving the military, I've taught evidence, trial advocacy, criminal law, and military law (as well as a few other subjects from time to time) at the Southern Illinois University School of Law. I joined the Illinois bar in 2009. Since then, while trying to do all the things a new professor must do to obtain tenure, I've worked pro bono on the rehearing of  a murder case and a DUI case. Both cases ended in guilty pleas (full disclosure--my co-counsel and I withdrew from the murder case for one of the few reasons one can withdraw from a criminal case shortly before the guilty plea, although we were on the case for nearly two years and several motions hearings). In both cases, in two different jurisdictions, I felt that the prosecutors handling the cases were fair to my clients and represented the interests of justice very well. 

I have never tried a civil case, although I am currently co-counsel on a civil qui tam case that is in its early stages. I have been an expert witness in one civil case, which was settled not long after the parties finished deposing all the experts.

The Innocence Project and My Views on Wrongful Conviction

A couple of years ago, our law school became involved in the Illinois Innocence Project. The Project is headquartered at the University of Illinois at Springfield and also includes all three public law schools in Illinois (Northern Illinois, University of Illinois and Southern Illinois). It is also part of the National Innocence Network. My colleague Bill Schroeder and I are the faculty advisors for the program at SIU. Our students read and evaluate requests for assistance, analyze case transcripts, search for evidence, interview witnesses, file motions and work in all phases of post-conviction relief and the executive clemency process. 

It is impossible to be involved with the innocence movement and not realize that there is a very real, and empirically quantifiable, problem with the criminal justice system in the United States. To learn of these cases and situations has been an eye-opening experience for me, because as I said earlier, I do not personally have any experiences with actual prosecutorial misconduct. At last year's Innocence Network conference in Kansas City, nearly 200 exonerees attended. I had the opportunity to talk to many of them, and I asked them what they thought about their defense attorneys at trial. Not very many positive comments came from those conversations.

Brandon Garrett, a professor at the University of Virginia School of Law, conducted empirical research on 207 cases in which innocent people were convicted and later exonerated by DNA. His book, Convicting the Innocent, does a fantastic job of analyzing the causes of wrongful convictions. Among those causes is prosecutorial misconduct and ineffective defense work. 

I believe that wrongful convictions constitute only a minority of the convictions in the United States. As my friend Bill Schroeder says, "Ninety-five percent of criminal defendants are more or less guilty of ninety-five percent of the charges against them."  Indeed, our students' experience in evaluating wrongful conviction claims for the Project is that most such claims are without merit.

Nonetheless, DNA exonerations have opened many peoples' minds to the fact that innocent people can be--and have been, much more often than we would like to believe--convicted of crimes they did not commit. So, what does storytelling have to do with this?

Storytelling, Prosecutorial Misconduct and Wrongful Convictions

I personally believe that storytelling may be at the root of wrongful convictions resulting from prosecutorial misconduct. When a prosecutor (or any attorney, for that matter) chooses a  story that is not fully supported by the evidence, the investigation, trial, and post-trial process become a series of efforts to validate the story. Justice and the truth take a back seat to the story. 

Stories are powerful. They matter. The wrong story, unsupported by or in spite of the facts, can have a powerful impact nearly impossible to overcome.

As an example, last January, a group of law students and I presented a petition for a posthumous pardon to the Illinois Prisoner Review Board for a man named Grover Thompson (link to stories here and prior blog post on the case here).Grover, who was crippled and walked with a pronounced limp, was convicted in 1982 of aggravated battery of a woman in Mount Vernon, Illinois. She lived in a basement apartment and reported that an intruder came through the window, stabbed her while she was getting out of the shower, leaped back up through the window when a neighbor responded to her cries for help, and escaped. She identified the intruder as a black man. Unfortunately for Grover Thompson, he was the closest black man available. Just minutes after the stabbing, someone remembered seeing a black man sleeping in the lobby of a nearby post office. This was Grover. Despite the fact that he had no blood on his clothing and could not physically have either made it into or out of that basement window, he was convicted of the crime and died in a maximum security prison 16 years into his 40-year sentence. Grover always maintained his innocence, from the first time police approached him to his death in prison.

The defense attorney in the case put on a good defense. He had Grover walk to the witness stand, demonstrating the limp (one leg was considerably shorter than the other), and Grover testified that he didn't do it.  But it didn't matter. The prosecution's story was that a black man had committed the stabbing, and the physical disability of this black man and impossibility of committing the offense was immaterial. The story was what was important.

Many years later, a cold case investigator in Carbondale discovered that Timothy Krajcir, a convicted serial killer and sex offender who committed a string of rapes and murders in a three-state area during this time frame, had actually committed this assault. Krajcir has since confessed to the assault, providing details that were never released to the public and that only the assailant could have known. Krajcir drew, from memory, more than 20 years later, an accurate map of the bathroom and the window.  Krajcir was extremely athletic and could easily have entered and exited the basement as described by the victim. Though he is Caucasian, he was dark-complected and was often described as dark-skinned or black by survivors of some of his sexual assaults.

The initial response of the Mount Vernon police to Krajcir's confession was that Grover Thompson must have boasted about the stabbing to Krajcir while they were both serving time at the same maximum-security prison and that Krajcir was confessing to get attention. The likelihood of Krajcir--who was Caucasian--and Thompson, who grew up in Mississippi during the Jim Crow era--developing such a relationship in a maximum-security prison is slim at best. Krajcir had, by the way, already confessed to a number of other unsolved cases, every one of which was verified by investigators.

The point is that years later--even when confronted with an actual, credible confession to the contrary--the original story still held sway. A black man had assaulted the victim. Residents had seen a black man within walking distance of the crime scene. A black man was at the described location. Therefore, the black man police found must have been the assailant. Never mind the inconvenient facts, the physical impossibility of this black man committing the offense, or the fact that a dark-complected white man actually did it. The initial narrative was--and to the minds of some, remains--all-powerful.

To me, this case and others like it are why stories matter so much and why storytelling is so important at trial. I maintain, however, that the story must be accurate, and it must be supported by the evidence. This is where prosecutorial misconduct in a criminal case--whether it is withholding evidence, ignoring exculpatory evidence, falsifying evidence, or misrepresenting evidence--is so egregious. These prosecutorial sins are used to create powerful stories that have real impact on the lives of others.

Experience as the Best Teacher

I think there is much truth in the adage that experience is the best teacher. In our modern era, however, we must recognize that many of our students will not be able to obtain the volume of experience of past advocacy masters. This is particularly so in the civil arena, where relatively few cases ever make it to trial. 

Furthermore, outside of well-funded governmental agencies, opportunities for training outside of law school are increasingly limited. Law firms aren't paying for training as they once did. Many public agencies have limited training budgets.

As educators, we have to provide training that can meaningfully prepare students to practice law--to tell stories and be good advocates--and that substitutes for experience. One of my recent graduates got a job at a prosecutor's office in the area. She had taken trial advocacy and been on the trial team, which gave her more trial experience than many of the newer members of the office. Within a week or two of starting the job, she had her first jury trial because of the experience level she had obtained in law school. None of the other younger attorneys in the office felt competent to take the case. This is not an uncommon experience; I've heard similar stories from many graduates in the past few years.

I think the era in which lawyers can learn at a client's expense has passed. This creates a tremendous responsibility, and opportunity, for those of us who teach advocacy.

Why Trials Matter . . . Julie Rea and the Long Path to Exoneration

This afternoon, Julie Rea spoke to a packed courtroom at the Southern Illinois University School of Law, telling the story of her wrongful conviction and eventual exoneration for the 1997 murder of her 10-year-old son, Joel.  An intruder broke into her home and stabbed Joel to death.  Julie fought with the intruder, who fled the home.  She was convicted of the murder by a jury in 2002.  Shortly after her conviction, Tommy Lynn Sells, a serial killer on death row in Texas, confessed to murdering Joel.  He confessed multiple times in the next few years, and his confession was corroborated by investigators working with the Downstate Illinois Innocence Project.   Investigators also brought to light evidence of police perjury in Julie's original case. An appellate court in Illinois vacated her conviction in 2004, but prosecutors immediately re-arrested her for the crime and brought her to trial a second time.  With the help of Northwestern's Center on Wrongful Convictions, Julie was acquitted in 2006 at a second trial.  She subsequently received a certificate of innocence from the State of Illinois.  You can read more about this case by accessing the now-renamed Illinois Innocence Project's website. A link to Julie's page on that website is here.

One of the central tenets of her message is that what happens at trial, from jury selection all the way through to closing arguments, makes a tremendous difference.  In her first trial, an outgunned public defender represented her, alone, against two special prosecutors brought in solely for her case.  Her attorney persuaded her not to testify--in her words, would not let her testify despite her frequent pleas to do so.  Investigative misconduct, policy perjury and evidentiary error all occurred, unremedied, at the first trial.  Her attorney lost every phase of the trial.  Interviews with jurors after the trial revealed that they did not understand the burden of proof, their role at trial, or the role of the defense in a criminal trial; jurors commented that they were just waiting for her attorney to pull a rabbit out of a hat, or for her to look them in the eye and tell them she didn't do it. Julie said she knew as soon as jury selection began that she was in trouble. 

The second trial was a complete contrast to the first. This time, with legal resources at hand and zealous, tenacious counsel, she won at every phase of trial. The jurors not only found her not guilty, but they affirmatively proclaimed her innocence and condemned the prosecutors and police who brought the case against her in the first place.  

Ironically, to date county officials have not seen fit to bring charges against Tommy Lynn Sells for Joel's murder.

Julie's case, and many others like it, teach a powerful lesson about the importance of zealous, competent, prepared advocates who have the resources to do their jobs properly. I share it with you because it highlights, in stark and tragic detail, the central reason for training advocates in an adversarial system: trials matter, and in an adversarial trial, the skill and zeal of advocates can literally mean the difference between life and death.

I think it's important to keep these stories in mind as we go about our work of teaching advocates. In reality, we aren't just teaching them how to lay the foundation for a piece of evidence, to perform a scripted show at a trial competition, or to earn an A in an advocacy class.  We're teaching them the skills and ethical foundation they need to make our justice system function.

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A student view of appearing before a Court of Criminal Appeals

The Criminal Appeals Clinic at the University of Mississippi provides third-year law students with an opportunity to appeal a “real live” client’s criminal case through the writing of an appellate brief, and to present live oral arguments before the Mississippi Court of Appeals. (See earlier 2011 article on this blog by Phil Broadhead who is the Clinic’s Director) This is a view of the clinic from a student’s perspective, one who relished the chance to help a prisoner who was, it seemed, denied a fair trial.

Buddy approach

Stepping into the clinic class on the first day we may think we know what we are getting into, but we had no idea.　We were all assigned a case partner and handed a case file.　Each of us wondered if our case partner will be someone with whom we will be able to get along for an entire semester, and then we asked, ‘Am I ready to have someone’s life resting on my untested legal ability to advocate for them?’

A day or two later we printed out all of the documents and found we needed a five-inch binder to hold all the papers that we must check with a fine-tooth comb, because missing one little piece of information may be the difference between a successful appeal and our client spending the remainder of his life in prison.　Finally we were grateful that each of us was not solely responsible for writing an appellate brief on behalf of our client, as we recalled the horror of our first year legal writing efforts and the appellate brief we wrote at that time.

Issues and Writing

The class is structured to ensure that we had every tool to digest the myriad of documents associated with the case.　After going through the case documents several times, condensing them into a narrative, identifying the best issues for appeal, and doing the necessary legal research, the brief-writing process began.　The process was broken down into small, manageable sections that made the process seem effortless.　By the time our brief was completed, my case partner and I looked back and wondered how we had completed an entire brief without once being stressed.　

Each section of the brief was assigned and written individually and was coupled with classroom instruction. Once a section was completed, it was edited by Professor Broadhead, and returned to us for revision. We then had plenty of time in which we compiled the brief sections as a team for a “mega-edit.” We put it together into one document and added the table of contents, table of cases, and record excerpts for filing with the Court.

Oral argument preparation

The next step in the course was to prepare the live oral arguments to be made before a panel of judges on the Mississippi Court of Appeals.　Because the case we had been working on had not yet been answered by the State, we received a whole new set of documents and a brand new five-inch binder from a case prepared by the clinic students in the prior semester.　The most difficult part of preparing for oral arguments was being bound by a brief that someone else wrote.　At this point, we had all of the necessary skills to get through the case documents and identify all of the pertinent information in a fairly timely fashion, but if something we thought was important wasn’t included in the brief it was very frustrating to know that we had to put it out of our minds.　

Having reviewed both the documents and the applicable case law, we had two weeks of intensive oral argument preparation.　The two-person oral argument team and Professor Broadhead met three to four days per week for two to three hours at each meeting, in addition to a great deal of individual preparation.　Once again, there was that, “what have I gotten myself into” moment at the first meeting.　And, once again, we were given all of the tools and knowledge we needed to prepare an effective oral argument outline.

The first assignment was to compose our opening or closing statement, depending on whether one was doing the initial argument or the rebuttal.　Once the opening and closing statements incorporated the theory of reversal and the accompanying themes, we began to prepare the outline for the substantive argument, along with a case sheet of the controlling law in the issues to be argued.

By the end of the two-week preparation, we had a solid idea of the content of the issues, along with the elements of style in their delivery.　The preparation culminated with a dress rehearsal oral argument session presided over by other professors from the law school and a member of the moot court team.　This was when everyone realized there was no way to get through everything in the available time.

On our feet

The day of arguments was exciting and nerve-racking. I felt, wrongly, that I was wholly unprepared to be arguing against an assistant state attorney general.　Being in the room where the arguments take place was fine until the judges came on the bench, then all of the nerves hit and I began to pray that I wouldn’t screw up.　But, during the opening statement, I realized that I knew this case inside and out and was more than prepared to assert the arguments effectively on our client’s behalf.　Once a judge asked the first question, a fairly decent, maybe even a great answer flowed from brain to speech, the nerves dissipated and I was in a groove.　The eighteen minutes passed like eighteen seconds, and I sat down feeling pretty darned good.

Recommendation

The Criminal Appeals Clinic experience, or something comparable, is an experience that I would recommend to every law student. The skills or confidence this hands-on work gave me could not be gained in a traditional law school class.　My participation in the clinic was the most valuable and rewarding experience I had at law school.　It has given me confidence in my abilities to go into a courtroom and become an effective advocate, and has provided me with skills that will aid me throughout my future career.


This article was contributed by Katie O’Connell who was a clinic student in 2010 and recently began her career at the public defender’s office in Florida.

1st STEP: Integrated Trial Advocacy and Evidence Class at Golden Gate University School of Law

This post is by Wes Porter of the Golden Gate University School of Law in San Francisco.

We all conceive ways to best train future litigators and trial advocates during their time in law school.  Two summers ago, I listened intently to some of those ideas at Stetson's Educating Advocates Conference.  If we program directors and skills professors ran the law school, we would want to: (1) teach every student the rules of evidence our way; (2) show our students how the rules play out in litigation and at trial while they are learning evidence; (3) afford more of our students the attention, critique, and training that we devote to mock trial competitors; and, (4) maximize our time working with students in skills and advocacy courses.  I have thought about integrated learning models and better teaching practices in law school long before I joined the academy.          

The Idea

I convinced our law school, the Golden Gate University School of Law, to allow me to create an integrated, litigation curriculum for students who recently completed their first year of law school. Our Summer Trial and Evidence Program (1st STEP) is an 8-week, summer program for selected law students - they take Evidence, Trial Advocacy, and a specially-designed course called Evidence in the Courtroom.  Evidence in the Courtroom incorporates motions in limine, notice requirements, expert witnesses, and a more in depth coverage of the modes of impeachment, evidentiary foundations, and objections and responses at trial.  The program also includes presentation and acting techniques from a theatre instructor.

Students began with an intense, full-time week of trial advocacy topics (Monday-Friday, 9 am - 5 pm).  Faculty and practitioners lectured, demonstrated, and led advocacy, persuasion and presentation workshops.  With this strong foundation, students then spent seven weeks immersed in a full, 4-unit Evidence course integrated with our advocacy training and theatre instruction.  We tethered their learning and application of the rules of evidence to our skills training in every way possible.  Trial lawyers inevitably claim that they truly learned evidence by understanding how evidence came to life through litigation and at trial.  In 1st STEP, students continuously apply and exercise the rules and concepts taught in their Evidence course.  Our program compelled our students to perform advocacy exercises incorporating the rules - as they learned the rules.  

For example, the students learned about the business records exception to hearsay in evidence; contemporaneously, they performed exercises laying the proper evidentiary foundations to admit business records at trial and then use the exhibit to further their case theory and theme.  As the students learned character evidence and Rule 404(b), the students drafted notice of intent letter to opposing counsel under Rule 404(b), filed the ensuing motion in limine, responded, argued the motion at a hearing, and drafted the court's order.  While the students learned the impeachment rules in Article VI, they performed cross examinations incorporating the modes of impeachment and presented corresponding credibility arguments in summation.     

The Feedback

So far, the feedback has been overwhelmingly positive.  These students (affectionately called my "step kids") better understand the rules of evidence, better appreciate the role of evidence in their advocacy presentations, and demonstrate more significant improvement and development because they are, for the 8-week summer session, immersed in the topics we consider most critical to a successful advocate's foundation.   And remember - the students are rising 2Ls.  We have more time to reiterate our programmatic messages, cover advanced skills courses and topics, and contribute to their development as advocates.  I will track these student through their law school careers and beyond - but I am confident that the integrated learning model in 1st STEP is the way to teach and learn the rules of evidence.

The Questions

We have many lessons learned and ways to improve 1st STEP for next summer.  Many questions arose about how best to structure and execute the program.  Some of the key decisions were as follows: 

1. what advocacy skills would you cover in a full-time week with students who recently finished their first of law school and have yet to take Evidence?
   
2. if students took only Evidence and Trial Advocacy in a semester, how and in what topics would you integrate the instruction?
   
3. If you were permitted to run an "Evidence in trial" lab while students were taking Evidence, what exercises would you require to further their appreciation and retention of the rules?
   

Our Best Answers

We spent many hours planning 1st STEP and made many difficult curriculum decisions.  Here is how we answered the questions:

1. We covered the fundamental trial advocacy topics in our first, full-time week: theme and theory; case analysis; persuasion; jury addresses; direct and cross examination; exhibits; and even objections (they stood up and said "Objection, basis").
   
2. We drew the connections between Evidence and advocacy training with: motions in limine; objections and responses (at sidebar and before the jury); evidentiary foundations for exhibits, demonstratives, and statements; modes of impeachment; notice requirements; expert testimony; and the narrower topics of judicial notice, stipulations, offers of proof, and others.
   
3. Our Evidence lab exercises focused on: laying evidentiary foundations; impeachment by prior inconsistent statement; refreshing recollection; notice; and motions in limine (written motions and oral argument).
   

I am interested in any and all thoughts - and I am happy to talk about our 1st STEP. 

--Wes Porter

The Advocacy Experience at the Criminal Appeals Clinic, University of Mississippi School of Law

The National Center for Justice & the Rule of Law (NCJRL) (http://www.olemiss.edu/depts/ncjrl/index.html) was created at the University of Mississippi School of Law in 2001 by a Department of Justice training grant.

The primary focus of the NCJRL has been to provide educational opportunities in the highly-specialized practice of criminal law for judges, lawyers, and law students. The Criminal Appeals Program and the Prosecutorial Externship Program was established by the NCJRL as a part of the regular curriculum at the law school with the goal of offering students a concentration of study in criminal law and procedure.

The Criminal Appeals Clinic (CAC) provides a “live-client” appellate training program designed to instruct third-year law students in effective methods of issue identification, research, and brief-writing and, at the same time, offering the students the opportunity for direct participation in the pro bono representation of an indigent person awaiting review of their cases on appeal by the Mississippi appellate courts.

Along with the general clinical skills aspect of the CAC, the classroom component of the course also seeks to instruct the student on the fundamentals of criminal appellate practice, including the review of trial transcripts and record documents, the identification and evaluation of legal, procedural, and constitutional issues; the efficient use of research applications for the issues chosen for the brief; advanced instruction on the “fact-centered” method of brief-writing; and employment of “mega-editing” techniques to polish and refine the final work product.

Students participating in the program are: appointed a case partner; admitted to the limited practice of law; specially appointed to directly represent the client in the Supreme Court under the supervision of the clinical professor; and co-sign the Brief of the Appellant as an attorney of record in the case. In addition to the classroom component, each case team receives at least two hours per week of “one-on-one” clinical supervision in the drafting, editing, and revision of each section of the brief.

Since 2002, the CAC has provided this advanced training to more than 120 third-year law students who have represented indigent clients in more than 70 cases, and obtaining 12 case reversals or adoption by the Court of their position in amicus briefs.

A request is filed in each of the clinic’s cases to give the students the experience of participating in oral arguments before the Court in another case filed from the previous semester. Because of the generous cooperation of the Mississippi appellate courts, the Criminal Appeals Clinic routinely receives two or three grants of oral argument each semester. To date, over 30 oral arguments have been delivered by the student/lawyers participating in the program. (Link to the CAC’s oral argument videos posted online in the Mississippi Supreme Court archives: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_oralargumentvideos.html).

The CAC student/lawyers have won significant, gratifying, and precedent-setting reversals for their clients (http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_decisions.html), including the following cases:

James C. Newell, Jr. v. State was reversed for a new trial on grounds that “[t]he trial court committed reversible error in its evidentiary rulings [admission of a toxicology report] and in refusing Newell’s requested jury instructions on the newly revised statutory presumption under the ‘Castle Doctrine.’ . . .We hold that the jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with Boyette, then it should presume that Newell used defensive force against Boyette because he ‘reasonably feared imminent death or great bodily harm, or the commission of a felony upon him . . . or against the vehicle which he was occupying.’ So the refusal of instruction D-22 necessitates a new trial.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO64409.pdf

Vincent Carnell Hudson v. State was reversed and rendered on grounds that “[t]his certiorari review arises from Vincent Hudson’s conviction of possession of a ‘trace’ amount of cocaine found in his clothes. Because the evidence introduced at trial was insufficient to show that he knew the cocaine was present and that he consciously and intentionally had possessed it, we reverse and render the imposition upon him of a life sentence without the possibility of parole. Because the State did not prove beyond a reasonable doubt that Vincent Hudson was aware of the presence and character of the ‘trace’ amount of cocaine in his pockets, or that he consciously and intentionally possessed it, the evidence put forth at trial was insufficient to support his conviction for possession of the cocaine. Therefore, we reverse the Court of Appeals and reverse and render Hudson’s conviction and [life] sentence and order him discharged.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO61747.pdf

On August 11, 2005, the Mississippi Supreme Court reversed Ardes Johnson v. State, remanding it for a new trial on grounds that two instructions on self-defense and “pre-arming” did not correctly state the law to the jury for their deliberations. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COPINIONS%5CCO27989.PDF On the second appeal after re-trial on the original charge of murder, the Mississippi Supreme Court reversed and rendered his life sentence on July 31, 2008, thereby discharging him from prison, holding that the Appellant had conclusively established he acted in necessary self-defense in the killing under the Weathersby rule, a “longstanding, seldom-applied, legal doctrine. . .” Link to the opinion: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49972.pdf

Tabitha Miller v. State was reversed and remanded for a new trial on grounds that her self-defense theory of the case involving the numerous prior instances of domestic abuse committed against her by the deceased was not allowed to be fully presented to the jury through the testimony of police officers, thereby depriving her of a fair trial. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/Opinions/CO41430.pdf

After attending the May 2011 conference of law teachers and trial coaches at Stetson University College of Law’s Center for Excellence in Advocacy, the “what, how, and why” method of specific critique of the student’s performance and Joshua Karton’s exercises designed to improve the style of delivery in advocacy training will be incorporated into future CAC oral argument preparations. As a capstone educational experience, the Criminal Appeals Clinic offers students the opportunity to serve as advocates on the written page and in the argument chamber, bringing “real world” opportunities to represent actual clients in difficult cases even before they graduate from law school.

This article was contributed by Phil Broadhead who is the Clinical Professor and Director of the Criminal Appeals at Ole Miss law school. Phil can be contacted at:

THE UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
NAT'L CTR FOR JUSTICE & THE RULE OF LAW
POST OFFICE BOX 1848
3071 ROBERT C. KHAYAT LAW CENTER
UNIVERSITY, MS 38677
EMAIL: pwb@olemiss.edu - Web Page: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_gi.html
OFFICE PHONE: 662.915.5560

Why Advocacy Education Matters

I'm including a link (available here) to a current news story about a young advocate whose trial performance was so inept that the judge declared a mistrial.

As John Baker, president of NITA, said in a recent post (available here)--advocates need training now more than ever. The burden is increasingly shifting from law firms and government agencies to law schools. When you read the article I've linked, scroll down to the bottom of the article and glance through the comments. Setting aside the predictable vitriol against this young man, many comments focus on . . . you guessed it, the quality of the legal education he received. I have no idea whether or not this young advocate took trial advocacy in law school, but from the description of his opening statement, my guess is that he did not--or if he did, he chose to ignore whatever he was taught.

Mock Trial Competitions 1: Competing Objectives

Cheryl Wattley is an associate professor of law and director of clinical programs at the University of Oklahoma College of Law. This is the first of two pieces she has submitted about the mock trial process.

As I watch my mock trial competition team enter the room for their beginning round, I am moved to reflect upon this experience that we call "mock trial". So, drawing from my clinical classes, this is my "journal" of the experience, thinking about the broader picture.

A recent posting lauding the skills that can be taught through the preparation for mock trials found me generally in agreement. There can be little dispute that there is no substitute for working through case analysis, preparation and conduct of witness examinations, and drafting of opening statements and closing arguments. Students invariably gain knowledge and insight from those experiences alone. Similarly, the opportunity to engage in trial activities with students who are strangers, who are not known, provides an element that cannot be duplicated in a single law school.

Even the stress and anxiety that the competitors feel is a valuable growth experience. But, even with those givens, I find myself wondering how we might maximize the instructional component of competitions.

I have worked with students in a variety mock trial competitions including those sponsored by professional organizations, law schools, and student organizations. The rules of the competitions vary. For some competitions, there are stipulated exhibits removing the need for evidentiary foundations. For others, creation of material facts is not only permitted, but the absence of any consequence tacitly encourages such imagination, a virtual equivalent to encouraging perjury. Impeachment by omission may be prohibited. Re-cross examination, which is not provided by the rules of evidence and exists only within the discretion of a trial judge, may be made an integral part of the witness examination, creating an expectation that it is a routine component of a trial.

These variables present me with a fundamental conundrum: because I believe preparation for competitions is an opportunity to work with students in the development of skills and techniques that they will actually use in court in the representation of their clients, do I teach to the "real world" or do I prepare the students for a competition? Which do my obligations as a professor dictate that I pursue? I firmly believe that law professors are fiduciaries, charged with the responsibility of using our best efforts to prepare students for the practice of law. At the same time, I realize that I have an obligation to my academic institution to actively work towards the building and maintenance of reputation and presence. Clearly, success at competitions has become one symbol of a law school's stature and a well used tool for promotion.

An experience at a well regarded, invitation only, competition illustrates my conflict. The case revolved around evidence gathered during a police interview. The problem described a scene where the defendant was sitting at a table, across from the interrogator, being asked questions. Much of the case revolved around the defendant's demeanor and understanding of the interrogation process. For the closing argument, one competitor dragged a chair from behind the counsel table and set it a few feet in front of the jury box. He delivered his closing argument seated in that chair to evoke images of the defendant. That presentation was received with great enthusiasm and compliments by the judges who awarded scores reflecting their endorsement of the presentation.

Putting aside my thoughts as to whether the expected articulate, persuasive closing argument would reflect the anxiety and apprehension of the defendant, it is the "drama" of that action that gives me the greatest pause. Most of the judges in the courtrooms in which I practiced would have asked me if I had lost the ability to use my legs if I sought to speak from a chair. If I had dared to be so bold as to move the furniture, my creativity would have been crushed as arrogance and insolence.

At another competition, again involving a criminal problem, one of the witnesses was testifying pursuant to a plea bargain. The problem very pointedly did not provide any sentencing information, allowing the argument that the witness was testifying with the hope of receiving a benefit. One team had the witness testify that she had already been sentenced and received a 10 year sentence with no opportunity for reduction, an outrageously high sentence for the amount of drugs involved. But this testimony made it impossible to argue that she was expecting a benefit. Because the competition did not have a grievance procedure for the creation of material facts, there was no scoring penalty for this fabrication. My students' performance invariably suffered because witness credibility was an essential component of their defense case and it was effectively gutted by this manufactured testimony.

These examples illustrate the conflict that frequently occurs between the artificial reality of mock competitions and the actual practice of law. My colleagues who have coached and attended other competitions frequently share similar stories. So, I am left asking: what do I do in coaching my students? Do I acquiesce to the creative, focusing upon earning the favor of the mock judges? Or do I worry instead about the real judges, the clients, and the profession and concentrate upon acceptable decorum and procedure?

I wonder also what message we send students when we encourage them to engage in conduct that would not be acceptable in "real world" settings. Will the student, having received positive feedback, be eager to engage in such dramatic presentations in a courtroom? What if the student does such a presentation and incurs the wrath of the judge, what responsibility should be borne by the professor who encouraged such presentation? What of the ethical boundaries that are trampled by the manufacturing of testimony? Does such invention make the possible subornation of perjury one step closer and more palatable? Do we create a dynamic where lines that are not always crystal clear can become even more blurred?

Perhaps my thoughts are too bleak, my observations too melodramatic. Perhaps I have overlooked some asterisk marked note that provides a cautionary instruction. Perhaps we are not headed down a path analogous to profit making sports competitions that encourage and engender conduct that values winning above learning.

But if my concerns have merit, then I believe that the law professors who coach these teams should exercise our fiduciary responsibility and send a clear message about the standards and obligations that should direct participation in such programs. Without our students, these competitions would not exist. We, advocacy law professors, could come together in a proclamation, committing ourselves and our schools to participation in these competitions with integrity, professionalism, and mutual respect. Not a new rule or ground for a grievance or an objection to a team but a unified voice adopting an "Advocates Creed". After all, aren't these the very attributes that attorneys are to bring with them to every courtroom?

Competency and the Trial Bar: Using Medical “Privileging” as a Model

Scott Donaldson – trial court judge in Tuscaloosa County, Alabama; adjunct faculty in Trial Advocacy, University of Alabama School of Law. The views are solely those of the contributor.

Many thanks to my friend Professor Chris Behan for the opportunity to join in the discussions. I really enjoy reading the views of the contributors.

A license to engage in professional activity, as opposed to a trade, should require at least some indicia of competency. Here's a question - what profession permits a licensee to engage in an activity affecting the life, liberty or property of a citizen with no training in that activity? Law. Our law schools are doing a fantastic job of educating lawyers, but even the broad scope of that education over the traditional three year model cannot address all aspects of practice. Thus, a person can graduate from law school, pass the Bar exam, and represent a client in court without any proof that he/she is competent to do so. Perhaps this deficiency was remedied in the past when newly admitted lawyers were promptly hurled into "minor" civil and criminal trials, often under the tutelage of a more experienced lawyer. While I question the quality of representation in those first few trials, experience taught lessons that improved the quality. But times have changed. Today, even lawyers with a "litigation practice" can go years without trying a case in my area of the country for two primary reasons: (1) there are more of them resulting in fewer trial opportunities per lawyer, and (2) there are fewer civil trials due to mediation and/or arbitration. Thus, the lawyer who did not obtain trial advocacy training in school will not likely obtain much on-the-job trial experience either. As a result, the overall quality of representation diminishes.

I am firmly convinced that lawyers who took (and passed) a meaningful trial advocacy course or who regularly try cases (bench or jury) are more effective, more informed about the Rules of Evidence and Procedure, more confident, and more efficient in utilization of limited resources than those who do not. Their clients are better served and are more satisfied with the process. Thus, I think we should consider a bifurcated license. Pass the Bar and you are licensed to practice law. To represent a client before a court, however, you need an additional certificate. You obtain the certificate by satisfying additional requirements such as either (a) establishing that you took and passed a trial advocacy course in law school within three years of applying for the certificate, or (b) obtaining 12 hours of approved continuing legal education training in trial advocacy courses. Once you have obtained the certification, you may renew it every three years by establishing that you have appeared in at least ten cases or tried three bench or jury trials to verdict, or, obtained 24 hours of approved trial advocacy CLE. (The number of CLE hours and trials are for discussion only.)

Now, I'm not suggesting that we evolve toward a barrister/solicitor system as found in some countries, primarily because I am ignorant about those systems. I am suggesting, however, that it is time to seriously question why we are licensing lawyers to do something they don't know how to do. Perhaps we could analogize the additional certificate to the medical "privileging" concept. A physician can be generally licensed to practice medicine in a state, but must obtain additional "privileges" to perform services within a hospital such as operating on a patient. To obtain the privilege, the physician must prove that he or she has the requisite skill and expertise through training and/or experience. When properly applied, the system operates to protect patients from incompetent care and quality improves. Furthermore, the privileges are periodically reviewed to ensure a continuing level of competency. For example, a physician who has not performed an operation in years will either lose the privilege or be required to obtain refresher training. The same approach could be used for lawyers as well. A lawyer who has not represented clients in court in years should not be licensed to do so without some type of review.

I'm quite sure there are many downsides to this proposal, but we cannot continue down the same path and expect anything to improve. The public has a right to question the quality of services being rendered by what remains a profession. We need to respond.

Advocates (students and practitioners) Need Training More Than Ever

The following piece is by John Baker, President of the National Institute of Trial Advocacy

I have been reading the Advocacy Teaching Blog since last year, but have never commented. Chris asked if I could talk a bit about NITA's view on the January/February blog topic of "Advocacy Across the Curriculum."

Introduction:

Three key forces converged within the legal system over the last three years, some say over the last 30 years. The convergence resulted in a "perfect storm" for the American legal system and the American legal profession.

These three forces converging include; 1) economic stress on law firms and lawyers, which decreases or eliminates skills training and professional development; 2) federal, state, and local government budget cuts, which decreases or eliminates skills training and professional development for public service lawyers; and 3) renewed calls from the courts concerning the lack of skills training for the lawyers appearing in courtrooms and arbitration conference rooms.

Symptoms of this perfect storm include a precipitous fall-off in the level of professionalism of communication skills, and of ethical conduct by trial lawyers appearing in state and federal courts throughout the United States. It also includes a lack of trial skills in those who have not taken advocacy courses in law school. Translated - lawyers need training more than ever! They need a good base of training before they graduate from your law schools. And, they need continuing training ("booster shots") once they get into practice, especially if they don't have the opportunity to keep their advocacy skills sharp.

History Revisited?

Have we seen these storm clouds in the past? This decrease in "lawyering skills" looks suspiciously similar to what Chief Justice Warren Burger saw in the late 1960s, when he challenged the legal profession to improve the level of skill of trial lawyers appearing in state and federal courtrooms. In response to Justice Burger's challenge bar associations and other lawyer organizations embarked on the creation of advocacy skills training programs for practicing lawyers.

One such training organization is the National Institute for Trial Advocacy (NITA,) which I am happy to say I am privileged to be currently leading. In July of 1972 NITA staged its first learning by doing National Session in Boulder, Colorado. Over the last 40 years this NITA "learning by doing" method has been adopted by trial lawyers associations, by bar associations, by law firms, and happily by law schools.

The Need For Training Has Grown Exponentially

Despite forty years of all of these organizations training lawyers in advocacy skills, the need grows. Despite the expansion of expanding curriculums to include deposition advocacy, motions argument, and skills for other settings outside of the courtroom, the need still grows. Despite high profile studies and reports by prestigious academic and legal institutions (the "McCrate Report" from the American Bar Association Section on Legal Education & Admission to the Bar and the Carnegie Foundation report, "Educating Lawyers: Preparation for the Profession of Law") the need still grows.

Aggravation of the Problem:

Growth of this need has been aggravated by economic changes over the years and the ever expanding population of lawyers. Law schools continue to graduate lawyers in large numbers. Fewer dollars are available to train the lawyers in the private and public sectors. Government training money has dried up progressively over the last 40 years. The media headlines last fall and in 2011 paint a picture of even less government funding for federal, state, and local public service lawyers. The Legal Service Corporation budget may be cut another 11%, following the 2008 devastating cuts. (See http://www.prnewswire.com/news-releases/proposed-75-million-budget-cut-would-devastate-legal-aid-to-poor-115668409.html )

Law firms, large and small, have carried a large part of the load of training the law graduates in advocacy and communication skills for years. (See NITA White paper, available here). The 2009 economic downturn has reduced the resources and money available to law firm professional development programs to continue to provide enough training. Though clients are demanding better trained lawyers, firms can no longer find adequate funding to send their young lawyers to NITA or other skills training programs or to provide training in their own in-house programs.

Some Solutions

Programs for Practicing Lawyers. Creative solutions are needed. For the practicing lawyers, who need the training, NITA, trial lawyers associations, bar associations, and law firms will need to provide the skills training programs as economically as possible. The scope of training will need to encompass more than courtroom skills. Though courtroom communication skills are transferable to skills used in pretrial settings, post-trial settings, and depositions, advocacy training organizations need to acknowledge that fewer trials may require trainings to focus on the other advocacy settings for their training sessions.

Easily accessible and convenient training sessions are needed. Whether this means smaller outreach programs in geographically diverse locations or providing some of the programming online or electronically, all of us advocacy teachers must be prepared to think outside of the box. Public service lawyers will need scholarships or assistance, no matter the delivery system of the programs.

Law School Advocacy Training. The law schools may be the key to providing basic training to students before they graduate. Advocacy training needs to be expanded both in content (adding communication skills for transactional lawyer) and in volume (more sections of skills training.) At NITA we are seeing evidence that some law schools recognize the needs of lawyers as outlined in the Carnegie (available here) and MacCrate guidelines (available here). Participants in this blog share efforts they are making to expand the advocacy training efforts at their schools. Some are expanding their advocacy skills training curricula. For example, next month as a pilot project the University of Pennsylvania Law School has partnered with NITA to have NITA faculty present a week-long intensive "deposition through trial" skills training program for students during spring break. This intensive course takes the best of the training techniques NITA has developed in our public and custom programs and applies them in the law school setting. Other schools, including the University of Denver Sturm College of Law, are seeking ways to bring real life learning to substantive classes.

Plenty of Work Ahead for All Teachers

Just as Justice Burger saw in the 1970's there is plenty of need. Plenty of work to do! Despite limited resources lawyers still need training. The training may come in different packages. The training may be delivered differently. The training may focus on additional skills to the traditional trial skills training. No matter how the training changes, it is clear from the last 40 years, to keep up with this continuing urgent need for advocacy training the legal profession, legal organizations, and the law schools need to work together. Instead of viewing each other as competitors, we all need to work as partners to fulfill this enormous and growing need.

 

John T. Baker

E-mail: jbaker@nita.org

 

Advocacy Across the Curriculum: Integrating Team-Based Learning and Application Exercises in an Evidence Class

In keeping with the blog theme for January-February of Advocacy Across the Curriculum, I've decided to continue the discussion on advocacy teaching across the curriculum and write about an experiment with team-based learning and advocacy application exercises in my evidence class this semester.

Let me first express some disagreement with some of the more cynical views expressed by my good friend Hugh Selby in an earlier post (available here) about the future of skills training in law schools. I think Hugh is right about the resistance of the law school professoriate to experiential learning and skills training. The current focus of many faculty members is scholarship. This confers a benefit on students because their professors are intellectually engaged with the larger legal and academic community. But, as Brent Evan Newton points out in a forthcoming piece in the South Carolina Law review (abstract available here; previously mentioned in this blog here), there may be a problem if law school faculties focus on theoretical scholarship to the exclusion of experiential learning and training. Faculties with little or no practice experience may be too disconnected from the bench and bar to prepare graduates for the practice of law.

It seems to me that we might well see greater demand for experiential learning and skills training in law schools in the very near future. The MacCrate report (now dated, but still valid, link here), Carnegie report (link here), proposed ABA standards on outcome-based learning (discussed here, here and here, NITA's white paper on law schools (here), the shifting business model for law firm that leaves fewer resources for training new associates—all suggest to me that the future may be just a little brighter than Hugh suggests. Of course, five or ten years from now, I could be proven wrong and join Hugh in his cynicism, but for now I am optimistic.

For now, I've decided to integrate advocacy training into my doctrinal classes to the extent that it's appropriate. I have my criminal law students give opening statements, for example. I include courtroom advocacy exercises in my evidence classes. I also teach classes where this sort of thing doesn't work. For instance, in my military law seminar, which is a theoretical "paper class" there's no skills-training, nor have I included any in the international criminal law class I occasionally teach.

Personally, I think the integrated advocacy training is paying off. I've been pleased with the flexibility and adaptability that I've seen from students who have had to actually apply evidence principles in courtroom exercises as part of the basic evidence course.

Before this semester kicked off, I looked at my evidence course to see how I could more effectively integrate my application exercises. The biggest problem I had noticed was that, to save myself the work of making individual assignments, I had asked all the students to be prepared to play all the roles in any given advocacy exercise: counsel for both sides, witnesses, or judge. I found that the students tried hard, but were not quite as focused as I wanted them to be.

Luckily for me, at about the same time I was reassessing my evidence course, our law school hosted a teaching forum on team-based learning, taught by Barbara Glesner Fines of UMKC. This revolutionized my application exercises. My class is now divided into 5-person teams. Each class session, several teams are assigned to prepare for the application exercises. They are responsible to figure out who will play which roles for the day's exercise. They work together to produce a plan for the application exercise. When I call on a team, they have already decided who will do what. They've also frequently coordinated a script that, if not entirely correct, at least gives me something to work on them with during class. Sometimes I mix and match teams (I might use one team for advocates and another for witnesses, for example), but there has been no problem doing this because the overall level of preparation is so much better.

The team-based learning principles have given me a way to help the class elevate its learning. First, as frequently happens in an actual litigation setting, the students are working and preparing in teams. Second, they are able to pool their resources and create a better integrated product than the fragmented individual efforts before. Third, they come into class with an advocacy plan and try to execute it—which is quite similar to what we want them to do in the courtroom. Overall, I feel that the learning experience has improved by integrating team-based learning with advocacy application exercises in a doctrinal class.

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