Ethics and Tribulations of a Young Lawyer: Sam Akhwale on Integrating Real-World Examples in Advocacy Ethics Training

Sam Akhwale is an Advocate of the High Court of Kenya with 17 years post-qualification experience. He teaches Trial Advocacy at the Kenya School of Law, the Bar School in Kenya. Before that he had worked at Private Law firms, with the Office of the Director of Public Prosecutions and with a Human Rights NGO. Sam is a gifted teacher and advocate. He brings a kind and gentle, yet disciplined, approach to advocacy teaching.

At the 2015 Trial Advocacy course for Kenyan lawyers hosted by the Mombasa Law Society at the Coastal city of Mombasa in Kenya, East Africa, among the items on schedule was a discussion on ethics. To set the discussion going, some hypothetical problem questions were posed to the participants in the training.

One of the questions went: "You are a young advocate, and have been sent by the partner in the firm you work for, to travel to and file a motion in a court 150km away from your head office, for stay of execution of an award of damages against your client, pending appeal. You have travelled all that distance, then just before you file the motion papers in the registry, you notice the supporting affidavit drawn in the partner's name has not been signed by him. You call him and he tells you, "just sign it". What do you do?".

Back at the Coal Face: Selby on Returning to Practice from Academia

When Behan, Rose and Selby set up this blog we were all practitioners turned academics.  Taking practice into the Academy seemed like a good idea.  It is that, though funding problems for schools and their students, on line teaching and learning, and the ever present cry to 'do more with less', thwart the ambitions to adequately prepare today's students for tomorrow's practice.

Some 18 months ago Selby quit his tenured position and headed back to practice, about a quarter century after he'd left it.  Much has changed but the fundamentals of being persuasive, though brightened by the micro chip and touch screens, are as important and as overlooked as always.

The order of what follows reflects the significance of the issue to Selby's practice rebirthing.  Readers should impose their own order upon the material, reflecting upon their experiences.

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.

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  

Hugh Selby Reviews Henning, Feller and Henning'sCriminal Pretrial Advocacy Book

Book Review:  Criminal Pretrial Advocacy, Henning, Feller and Henning,  West Academic Publishing, 2013, c 170 pages, including an index and detailed contents.

What’s a foreigner doing, reviewing a book on US Federal criminal pretrial essentials? And the answer is that this foreigner, being as ignorant as the typical law student, is the ideal reviewer.  If it works for this reviewer, and it does, then it will work for your students.

This is a step by step journey, combining relevant statute, rules, key cases and guidelines with documentary illustrations, starting from the issue of a complaint through bail or detention, thence preliminary hearing, grand jury, and discovery, moving onto the range of pretrial motions, and ending with the outcome most likely by far – plea agreement and sentencing. I’m told that the formalism of the Federal criminal work is a good platform for students who will be working with a State based system.

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.

Schedule and Registration Link for Educating Advocates:Teaching Advocacy Skills 2013

Dear Colleagues:

I wanted to share the list of presentation topics & presenters for EATS this year. We have a great deal to talk about, and many folks are coming to share. As always, it will be a collaborative sharing environment where the attendees talk as much, if not more, than the presenters. Here is the list:

Courtroom Communications Lawyers Often Get Wrong

 Ms. Lara Dolnik

21st Century Advocacy Scholarship

Prof. Meghan Chaney

Prof. Gwen Stern

Prof. Megan Canty

Ethics & Competitions: Where We Have Been, Where We Are, and Where We Should Go

 Hon. David Erickson   

 Prof. Bobbi Flowers    

 Prof. Edward Ohlbaum          

 Prof. Susan Poehls    

 Prof. Jay Leach           

Teaching Advocacy in an Overseas Environment

 Petr Vaněček

 Prof. Michaël Da Lozzo

 Prof. John Burke

 Prof. Graeme Blank

 Prof. Peter Hoffman

Using Acclaim in Your Advocacy Programs

 Aksel Gungor, Acclaim Software

Lifetime Achievement Award

Professor Susan Poehls

Developing a Superior Advocacy

Teaching Methodology

&

Managing An Advocacy Program

 Dean Stephen Easton

 Prof. Hugh Selby

 Prof. Lou Fasulo

 Prof. Adam Shlahet

Blending Doctrine & Skills in the Classroom

 Prof. Jay Leach

 Prof. Carey Bricker

 Prof. Chris Behan

 Dean Peter Alexander

Creating the 21st Century Law School:

Doctrine, Skills & Service

 Prof. Bobbi Flowers

 Prof. Wes Porter

 Prof. Nancy Schulz

Developing & Filming Teaching Scenarios

 Prof. Rafe Foreman

 Prof. Chris Behan

 Prof. A.J. Bellido de Luna

 Prof. Michele Joiner

 Prof. Lou Fasulo

 Prof. Adam Shlalhet

Teaching in the Moment: Developing Your Critiquing Methodology

 Ms. Gillian More

 Mr. Jude Bourque

 Hon. Robert McGahey

On Paper v. In person

 Mr. Joshua Karton

As you can see the group who has committed to teaching at EATS this year is incredible. We hope that you will join us, and bring a friend. If you have any questions about the conference, or just want to visit you can reach me by email - crose@law.stetson.edu. 

See you in May!  Your first step is to register online by going to: http://www.law.stetson.edu/conferences/eats/  

Charlie

Critiquing Students--A Guide to Different Methodologies

Last week, in response to a blog post about storytelling, we received a few comments about war stories and critiquing law students. Here is a link to that post and its comments.

I also received some emails asking for more details about NITA's 4-step critiquing methodology (Headnote-Playback-Prescription-Rationale) and the three-step Rose derivative (What-Why-How). People who have received NITA training and also attended the EATS conference at Stetson will be familiar with both approaches, including their similarities, differences, strengths and weaknesses. 

There are other critiquing and learning improvement methods as well that have been used over the years. These include peer review, student-centered Socratic dialogue, video review, and so forth. 

With 40 years of usage, the NITA technique remains by far the most dominant, but some of the other alternatives, including Rose's technique, are gaining traction. Those of us who have been lucky enough to learn at the feet of Joshua Karton, whom I consider to be the high priest and shaman in the advocacy teaching temple, have seen the value of a holistic approach to helping advocates improve: Joshua teaches attorneys how to be human beings again, and in so doing, releases within them persuasive powers they had long since forgotten.

A few years ago, I published an article discussing several different critiquing techniques (including both the NITA and Rose techniques) and proposing an alternative critique for teaching environments, such as law school courses or trial team coaching, where the instructor has the luxury or more time with students. For those who are interested, I provide a link to the article, From Voyeur to Lawyer: Vicarious Learning and the Transformational Advocacy Critique.

My article includes references to much of the existing scholarly literature about advocacy critiquing. There isn't nearly as much of it as one might think, and that brings up another point I'd like to make: we in the advocacy teaching community need to revitalize scholarship in this area. There was a "golden era" of advocacy scholarship from the mid-'70's to very early '90's, but since then, the scholarly articles on the subject have been few and far between. Simply put, there are many opportunities to do fascinating research and write interesting articles on persuasion, advocacy, juries, teaching, and so forth.

One last, but related, thing: Charlie, Hugh and I all receive insightful emails from people who've read blog posts and want to share ideas with us about the things that have been posted. We love getting those emails (there are a LOT of people out there with great ideas), but even more, we'd like it if you'd post those thoughts as comments to the blog posts--that way, everyone who reads the blog could have the benefit of your wisdom and insights.

Advocacy, Strategy and Fairness: A.S. Dreier Responds to Selby's Review of His Book

We received the following from A.S. Dreier, author of Strategy, Planning & Litigating to Win: Orchestrating Trial Outcomes with Systems Theory, Psychology, Military Science and Utility Theory, in response to Hugh Selby's review of his book published on this blog in December.  

I haven't read the book yet, but after reading Hugh's review and Andrew's response, my interest is piqued. It is now at the top of my reading list.

I think the debate between Selby and Dreier raises some valid and fascinating issues about advocacy, ethics and teaching. Please comment and join the debate!

Advocacy, Strategy and Fairness

A.S. Dreier

Since publishing “Strategy, Planning & Litigating to Win,” two advocacy instructors have separately asserted that the techniques of Strategy described are “unfair.”  I understand the concern—the methodology allows an attorney to deny their opposing counsel the ability respond effectively to unfolding events.  However, the claim of unfairness simply highlights a longstanding unfairness in the trial system.  Sophisticated (i.e. well-educated, intelligent, experienced) attorneys have always been able to dominate ill-prepared or less-intelligent adversaries.  The inclusion of the tools of Strategy simply resets the bar for “well-educated” and “well-prepareto include those with an understanding of Strategy.  The playing field will return to the status quo ante when formal tools of Strategy are incorporated in the education of trial advocates; until then, those who know Strategy will have an edge over the larger pool of trial advocates who do not.

The real problem, though, the issue highlighted by the claims of unfairness with regard to Strategy, is the fact – highlighted by the header to this blog, that the advocates skill affects (and sometimes wholly determines) the outcome of trial by court.

Modern trials differ from medieval trial by combat (where the litigants or their representatives dueled physically, allowing God to grant victory to whoever had the just case) in that rather than relying upon combat prowess or divine intervention it calls upon jurors to weigh relevant evidence. Evidence, however, may be (and often is) unclear and subject to multiple interpretations.

Advocacy leverages the need for interpretation in a variety of ways. For example, we develop a theme and theory in order to provide a favorable context to the evidence. We use primacy and recency, preempt our opponents arguments and counter-arguments, shift emphasis to favorable facts and away from unfavorable ones, extract from witnesses information that advances our preferred interpretation of events, and use techniques of persuasion to influence the way jurors perceive.

If we possess but do not use these skills, are we in breach of our ethical duty to our client?  If I am an experienced, well-educated advocate capable of crafting an argument that glosses past its flaws in a way that I am certain the unsophisticated, in-experienced (i.e. slow-witted) opposing counsel is likely to miss and so have no effective response to, am I being “unfair,” or am I serving my client?  Am I committing malpractice if I tell opposing counsel or the court about the weaknesses of my client’s case?

So, while trial by court gives some weight to the facts, we still have the trial by combat issue of having outcomes altered or even determined by skill rather than objective concepts of justice.

The techniques of formal Strategy—leveraging the OODA Loop (capitalizing on information the other party does not possess due to privilege or work product, shaping the context in which they receive and assess information, channeling the decisions they make, or taking actions that preempt or disrupt opponent's actions), using economic game theory to shape situations, and drawing upon tools from other strategic schools of thought—simply adds an additional layer of skills that opponents will either be capable of confronting or not.  “Strategy, Planning & Litigating to Win” points out that the techniques of Strategy are sometimes already intuited and used by practicing counsel, so any unfairness in them already exists in the system.  SP&LTW simply puts the techniques within the reach of all attorneys, and clarifies when they are or are not advisable. 

The "Paradox of Skill" states that greater levels of skill among the participants in a competition increases the degree to which “luck” affects the outcome. In the attorneys' case, "luck" may be having the facts and law on your side--in short, the more equally skilled the attorneys, the more likely the trial has a “just” outcome. So, once all attorneys can bring to bear the techniques of Strategy, the system will tend more toward justice.  Since these are techniques are already in use by some intuitively strategic counsel, by publicizing them, my book actually levels the playing field against the intuitively gifted rather than creating unfairness.

To ensure fairness, we could either require all attorneys remain equally ignorant of Advocacy and Strategy, or we can try to make all counsel competent in Advocacy and Strategy while ensuring they follow the rules of ethics (rules which allow persuasion, create disparity in the information available (privilege and work product—work product that includes the attorneys theme and theory).

I hope some of you post thoughts on this topic—Should we stop teaching advocacy? Should the Bar require trial attorneys be proficient in Advocacy and Strategy before entering the well? Should we say that some currently ethical techniques are unethical? How do we deal with the unfairness created by an adversarial system that allows outcomes to be swayed by attorneys of unequal skill?

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 what, why and how of our advocacy teaching

-->

I am yet to meet a colleague who decided early that their career was to be an advocacy teacher and who then single-mindedly achieved their ambition. 

Rather my teaching colleagues have arrived by accident, by way of routes such as: ‘You’re teaching procedure, evidence and criminal, so why not add the advocacy as we’re got no one’, ‘Remember that time over drinks when you said you’d be willing to help out as an adjunct, well we need you tomorrow’,  ‘Look, you’re one of our better known alumni, you’ll have plenty of time after you retire from the court next week, so come aboard and share your wisdom’, and, ‘Liked what you did on your feet today, so how about coming to help me with this trial team and, if you like it, we’ll get you along to teacher training’.

Once snared so many of us stick around, often for years, sometimes for decades.  Why? Isn’t it a mix of pride in seeing future advocates mastering basic skills, a sense of willing obligation to hand on ‘professional’ standards, and the immediate ‘feel good’ rewards that we get when the students grin with new found communication power?

The accidental way in which we enter the field and the immediate and repeated ‘rewards’ may explain the dearth of discussion about our approach to teaching:  what we should teach, why, how, etc.?  We come into established courses, the reasons for their content and order lost in time.  We use a case file because we’re told it’s good. We attend and enjoy a NITA or similar ‘train the trainers’ session and feel that there is now light upon the dark spaces of teaching and learning.

All of that is worthwhile but in this age of ‘where’s the proof that your methods are effective and efficient?’ we’re not much beyond the snake oil peddlers.

‘Too hard, steady on, don't attack my bona fides as (one or more of) an experienced advocate, judge, legal academic’. OK, try to write a reasoned, evidence based paragraph about why you start your advocacy training the way that you do.  Done that?  By the way, ‘evidence based’ means what it says.  Your and my ad hoc memories and assumptions from practice do not constitute reliable evidence as the data set is far too small.  Perhaps you need to rewrite that paragraph? Now consider whether and how you actively shared what you have just written down with your current or last class.

Over the past twenty years I’ve gradually jettisoned pretty much everything that my well-intentioned early mentors told me about advocacy training.  Experience with many groups of students (large and small, novice and experienced, adversarial and inquisitorial domains), demonstrated over and over again that the ‘standard’ approaches too often didn’t work beyond the student experience. Sure they gave the students the ‘holiday cruise’ effect of feeling terrific in the immediate aftermath; however, the skills were just icing and the cake was hollow. That was all too obvious when watching them in ‘real’ courts in the months or years after their training. [I concede that an explanation is that I am a lousy teacher, and that any good teacher would not have such an experience; however, I’ve seen the ‘in court’ results of others’ teaching and so they too are lousy.]

The consequences of unsuccessful teaching (and such teaching may be enthusiastic and engaging, just as it may be deadly boring) are not the same for black letter law subjects and practitioner skills. There’s a fundamental difference between applying ‘substantive law’ and ‘practising good advocacy’.  In the former, assuming that at least problem identification is learnt, then the indifferent student, now practitioner, can find the answer by research. They can ask around, go on the web, visit the library and all will be well. But in the latter there is no substitute for the hard yards of real skill acquisition through the repeated combination of informed effort and talent. Good advocacy takes a lot of effort, a commitment of time that is expected of serious sports people, and therefore is quite unlike the, ‘I’ll cram today and tonight for tomorrow’s exam’.

The necessary effort reflects opportunity, efficient and effective skilled instruction, consistent motivation, and acquiring the ability to self reflect and so self improve.  For an image that captures the ideal see the Grecian discus- thrower at  http://en.wikipedia.org/wiki/Discobolus   We see, still mesmerising after a couple of thousand years, the achievements of both player and sculptor, reflecting total commitment by each to the performance.

If a student asks me, ‘What is the aim of direct examination?’ my fantasy answer is to achieve as an advocate with the witness what that sculptor achieved with that discus-thrower.

That’s the ideal but what about reality?  How much ‘deep learning’ (that is, learning that will be recalled and applied well after the end of the course) is achievable for the average student in a one semester course with 3 hours of class contact per week?  How much more is achievable with the highly motivated trial competition team members, bearing in mind though that the focus for such a team is not broad skills but the specific requirements of the competition case files?  The competition rules, for example, limit the players to the information contained within the script.  That limitation does not marry with real life practice so that the competition focused advocate is missing out on a significant part of ‘advocacy in the real world’ where going beyond the script to make use of the audiences’ life experiences is one of the hallmarks of real persuasive skill.

So what training method or methods will achieve that ‘deep learning’? Are any of our readers sitting on some unpublished research that will help to answer this question?  Are any of our readers proposing such research and looking for one or more other readers, who happen to be advocacy teachers, to share in the project?  Is there an unpublished survey of former advocacy students that asks about the extent to which, as frequent or infrequent advocates, they apply and reflect upon what we taught them? Did we miss something that they really needed and had to find out about through trial and error?

If we take any one of the advocacy skills, how should that skill be broken up so that the student understands what they are trying to master?  Yes, there are building blocks, but are they the right size, or overly broad, or overly narrow for the best teaching and learning? The fact that something makes a lot of sense to a person who already ‘understands’ does not mean that the learner likewise sees the explanation as clear.

Another unknown is the best order in which to teach these skills.  Some people say start with direct, others say to start with the closing, yet others prefer to start at the beginning, while others again like to start with case analysis.  I start with where my student audience is at.  That means I have different starting points for a high school mock trial team (who have not studied law) and a later year law student group (who are saturated with legal principles).  With the high school group I start with cross because the initial burst of excitement will get us over the ‘dry’ law stuff. With the law students I will probably start with case analysis because it takes their law out of the classroom and into the world. With a group of practitioners it’s necessary to gently inquire about what they now do for preparation and performance, listen to the answers, and fashion the teaching entry point to reflect the best connection to where they are at.

Readers who follow NITA will know that they are celebrating longevity this year. [See their hyper link in the right column of this blog.]Many of us owe much to our NITA experiences, both as students and teachers.  NITA has had to adapt to the times. Programs are now shorter than they used to be. As with university teaching there is, or will be, more ‘on line’ material and less face to face. 

As advocacy teachers in a fast changing world we need to be sure that what we teach, why we teach it, and how we teach it are ‘evidence based’.  Otherwise we may find that we’re surplus to requirements, that ‘our’ job will be done by the brassy but ignorant. Given what the community (which includes our students, clients, witnesses and jurors) sees on TV as ‘court room drama’ there is a terrible risk that no one will notice the difference.

Hugh Selby ©  June, 2011

Class Notes in “Skills” Courses

 This post is from Wes Porter of Golden Gate University School of Law

Generally, a student's individual notes are near useless in a skills course. Students do "take notes" in our classes.  During lectures, demonstrations, performances by their peers and instructor's critiques, they write down something. But, what do these notes look like? How useful are they after the specific exercise and after the course?  Do students retain the notes? Turns out, these notes are not very useful at all. 

I (informally) surveyed advocacy students and most do not retain any notes following the skills instruction.
Of course, there are some simple explanations. Students retain their notes from doctrinal courses for use later in law school, the bar exam and beyond. Most students hang on to their advocacy textbook (maybe because, unlike in substantive courses, our skills textbooks, like Charlie's, are easy to read and more comprehensive than student notes – and most advocacy courses). Another reason is, the notes themselves are scattered, selective and inconsistent.

Each advocacy course and every skills instructor is unique. I want the students to not only have a great "learning experience" during a semester - but also to maintain the foundational lessons thereafter.  I sought a way to better memorialize the specific advocacy instruction in a course so that students may refer to it in advanced skills offerings, mock trial competition and (maybe even) later on in practice. To that end, I am currently experimenting with forums on TWEN, a very easy to use blog-like function you can set up for any class.

We use regular (weekly) forum posting through TWEN to create "class notes" in certain skills courses.  The process looks like this.  First, like most of you, I assign reading, handouts and other materials on a specific advocacy topic (ie. modes of impeachment) and then I lecture and demonstrate the skill during class.  Second, each student performs within the topic the next class meeting while his or her peers evaluate the performance against specific assessment criteria. Third, I distribute and post on TWEN the peer evaluations immediately following the class meeting. Fourth, and central to this post, each student following their performances, my critiques and their review of the peer evaluations must post a "take away" on the topic on forums.

Following class, I create a TWEN forums topic for the topic of instruction, such as "Modes of impeachment." The students must post a reflective paragraph or two about what they learned about the topic (maybe from their "notes," peer evaluations or further reflection). Under the modes of impeachment topic, for example, one advocacy student wrote: The more comfortable you get with impeachment, the easier the decision gets.  You can develop a "long version" and a "short version" of impeachment - if someone strays on some minor detail, then I still let the witness know they strayed from their "safety net" [the witness' prior statement] and I KNOW it.  I require the forums posting as part of their grade.  This generation of law students read the posts, comment on the posts from their classmates, and sometimes even debate advocacy lessons (this is when I weigh in). 

Lastly, I aggregate the quality posts and comments into a single document organized by the advocacy lessons (ie. Modes of impeachment) and then sub-categories (ie. Modes of impeachment - bias). I then distribute them to the class at the end as our "CLASS NOTES" (and also post the class notes to TWEN). The class notes represent a particularized collection of our skills course, my language from lectures and critique and the students' language in the take aways.  My hope is that students will retain these notes and the big picture lessons will assist them in our program and maybe even in practice. These class notes may also benefit subsequent advocacy students, as well as further unify some of our programmatic messages. 

We are always searching for ways for advocacy students to internalize the lessons that we preach and repeat constantly. With this TWEN forums experiment, students reflect on an advocacy lesson, write a paragraph on the lesson, share their individual notes, read each other's notes, comment and discuss the lesson, and, hopefully, receive something worthwhile at the end of the semester in the form of their "class notes." I am interested if other skills instructors have similar approaches or thoughts. I am happy to share some additional examples of the forums topics, student posts or the "class notes" from past skills courses.

--Wes Porter

Lessons from the Neurosciences for Advocacy and Advocacy Teaching

-->

The best advocacy, be it questions or submission, is elegant in the simple beauty and efficiency of expression.  The ideas are so clear that they capture the audience and hold them as the logic plus the stagecraft of the advocate glue one point to another and another.

If we think about our advocacy, if we think about improving it, and improving the skills of those whom we teach or mentor, then the ‘best advocacy’  is our aim.

However, beyond the prescriptive models that have served these last forty years to train the novice, what do we have that is generally agreed to be applicable for working with those, who being no longer novice, can aim for greatness?

An experienced advocate listening and watching another experienced advocate can have the same rewards and punishments that a skilled musician has when listening to other musicians, or a skilled dancer watching dancers, or a good golfer watching one of the best. There is sufficient critical capacity to be alert to mistakes, to be in awe of aspects of a performance, but likely as not, insufficient capacity to answer, “How did he or she do that?  How could I achieve the same result?”

Just to make the problem a bit more complex the performer too is unlikely to be able to explain how or why they performed so well.  They just did.  We use such words as ‘inspired’, ‘out of the blue’, ‘magical’ to label that something extra.

Fortunately there is newly found light to help us better understand those perfect intuitive decisions. A chance chat with a Business School teacher took me to psychological texts on neuroscience developments, making choices and problem solving. Out with those old, and wrong ideas, about the separation of the emotional and the rational.  In with the new knowledge of how different parts of our brain receive, store, and deal with information. Our emotions and rational decision making are not non-communicating systems. They are closely interrelated.

I was reading with an eye to any insights the research offered for teaching advocacy and being an advocate.  The pickings made it worthwhile. I use them liberally in the rest of this essay. For those readers who would like to follow the road back to the source I strongly recommend the easy to read and digest Jonah Lehrer’s  ‘The Decisive Moment. How the Brain Makes Up Its Mind’, 2009, Canongate,  ISBN 978 84767 313 8.

Learning from mistakes

It’s clear enough that we prefer pleasure to pain (and those who ‘prefer pain’ should stay with this article a little longer). Dopamine is a chemical found in the brain and because of it we ‘learn’ to anticipate that  ‘this’ brings ‘that’.  We learn so well that the expectation excites our pleasure senses even before the reward arrives.

If the reward does not arrive then we have made a mistake.  It follows that we must learn from our mistakes all the time.  To learn, to create reliable expectations, we must recognise the mistake, understand it, resolve it and then practise the solution. Our expectations are then ‘rewarded’ appropriately.

As advocates the fact that we’ve made a mistake is often all too obvious.  The witness does not reply as expected, the decision maker is all too clearly unimpressed with our submission.  The gift the teacher or mentor can bring is to point the way to understanding and a solution. But it’s the practice that is then the key. No practice or too little practice entails insufficient learning. The same mistake will then recur.

The excitement of getting it right once does not equal a usable skill.  Getting it right once shows a capacity.  Getting it right a number of times demonstrates a learned skill.  I make this point because one of the consequences of ever shorter intensive programs is that there is insufficient time for practise of each and every practical skill that is introduced during the program. There is also insufficient time to make the many mistakes that are a prerequisite to mastering the skill so that it’s ‘on call’ when needed.

For advocacy teachers a teaching problem is how to maintain student motivation during the essential practice exercises. Lacking any ‘born with’ ability for mathematics or language acquisition I always found the essential ‘practice exercises’ in those disciplines to be tedious. Lacking any motivation, other than fear of failure, my mind never reached ‘beyond’ the exercise to creative links. Most advocacy students are motivated so the problem is not so acute; however, it is still there.  As teachers we need to find materials, and follow methods that enliven and sustain that motivation throughout the practice.

In a perfect world (perhaps only a decade away) we will have the advocate’s equivalent of the pilot training flight simulator:  our students will be engaged in a virtual trial in which the variable answers from witnesses and questions from the judge will allow instant feedback followed by further practice to get it right.  In our real and present world, however, we must search for the more mundane but OK materials and methods.

Another problem that arises from short intensives is overload. Apparently our brains can only handle a limited amount of information at any one time. Supply too much and the ability to sort the wood from the trees is lost. When the prefrontal cortex is overwhelmed the person can no longer make sense of the situation. ‘Correlation’ is confused with ‘causation’, and people make theories out of coincidences.  In short, beware!

A challenge for we advocacy teachers is to examine whether our teaching sufficiently breaks a skill into its constituent parts, whether we create adequate ‘mistake’ opportunities, and whether we provide enough practice for the basic skill to be properly embedded.  Moreover, do we give the student the capacity to self reflect so that understanding and resolving are possible – either by seeking advice from a properly experienced person, or working it out solo?

The challenge for good advocates is effective management of extensive knowledge and experience. Often enough that stored knowledge and experience will bring them to the right ‘intuitive’ decision, but how should an advocate build a thinking approach that allows for further refinements as the skill and knowledge increases? [This ‘challenge’ is adapted from: K. Anders Ericsson, ‘The acquisition of Expert Performance as Problem Solving’, at page 75, in J.E. Davison & R.J. Sternberg, The Psychology of Problem Solving,  2003, Cambridge University Press.]

Whether novice or experienced, whether teacher or student, we can improve our decisions (eg. on case analysis, structure of chief and cross, reaching the audience in submission) through simple thinking techniques such as adopting an outside view, considering the opposite, or challenging ourselves to discover the root cause of a problem. I observe that credible science, and proper case analysis would always apply those approaches. Put another way, an advocate and an advocacy teacher must think about ‘how’ one thinks. [This solution is partially adapted from:  B.R.Newell, D.A. Lagnado, & D.R. Shanks, ‘Straight Choices’ at page 214, 2007, Psychology Press.]

The ‘pay off’ for accumulated skill (aka wisdom) is that the twinges, the gut response, the intuition are not superficial.  On the contrary, they reflect the distillation of all that has gone before, not consciously perceived, but being put to work at the right time.  It is because so much of that process is ‘deep’ that it is impossible to precisely explain ‘why’ or ‘how’ it came to be applied.

Somewhat surprisingly it is possible to ‘overthink’, that is to be consciously asking questions to self so often as to cut oneself off from one’s own wisdom. The result is to throw out ‘the known’ and reach a poor decision.

By the way, those advocacy teachers who still think that seven minutes of  student performance followed by five minutes of teacher critique is acceptable and useful to the student need to read and reread all the above until the penny drops.

Reaching the Audiences

We all want to make the right decision, and that’s the case whether we are jurors or judges.  How we ‘frame’ the problem, how we reason our way to the solution is influenced by our background , but we still like to think that we get it right.

Promise something good and people respond well just on that expectation.  The placebo effect (that is, feeling better because you’ve been told it will help) works apparently because that part of the brain which senses pain decreases its assessment of the pain in response to the expectation of pain relief.

Given the mind numbing effect of much court room evidence (surely ‘painful’ is not a misnomer) the promise by an advocate to bring interesting evidence may well cause the audience to pay more attention. Also naturally contributing to audience interest is their inherent wish to sympathise with the plight of others.  Such altruism ‘feels good’.  At its core ‘moral decision making’ is about sympathy: for example, we abhor violence because we know it hurts. The notion that an effective case motif is one that taps into these audience attributes of interest and sympathy seems reasonable.

An intriguing example is this visualising insight: when you want the audience to ‘see’ a person in a crowd then always use the mode,  “ X a whole number OUT OF Y a whole number”.  Using a percentage equivalent does not engender the same audience reaction. Apparently the problem with statistics is they don’t activate our moral emotions. 

Of especial interest to both advocates and judges is that the moral decision – the feeling (aka the emotion) - comes first.  The rational argument with all its ex post reasons follows the moral insight (however badly or well based that might be). Those in power, such as judges, business leaders, politicians, can become socially isolated. In that environment they don’t respond to other people’s situations as the sense of sympathy is displaced by other feelings. Their ‘rational argument’ flows from a different starting point and hence may be heartless, impersonal, indifferent to the plight of others.  That is not to say that their decisions are necessarily wrong, only that the manner of communication is bad. One useful tip to redress this tendency, given by  a famous judge to his brethren was, ‘Always write for the loser’.

Despite the ‘primacy’ of feeling it is possible to use the ‘thinking brain space’ (the prefrontal cortex) to overcome an emotional push; however, this requires very deliberate, very disciplined thinking.  An example of such discipline is seen in the thinking that is required to overcome our desire to avoid anything that smacks of loss, called – aptly enough – loss aversion.  So strong is our aversion to loss that we behave irrationally, becoming blind to the advantages of otherwise attractive options. A well known example is that faced with a falling market otherwise savvy investors sell their good performing stock rather than offloading the stocks that are performing badly.

I’m wondering whether this phenomenon is seen in the courts when an advocate sticks with a losing argument rather than refocusing on the more attractive argument or arguments that may bring success.  The best advocates, of course, are able to read the signs, listen to the messages from the bench and change course. Not only do they just know, but when that is not enough they can think beyond the norm.

Hugh Selby ©  March, 2011

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