How Do You Spend the Last Five Minutes of Class?

The following guest post was written by Mark Caldwell, Program Development and Resource Director at the National Institute for Trial Advocacy.

Sometimes Face Book leads you further than updates of restaurants your "friends" have visited, Selfies of others bragging about where they have been, and reminders of a friend's birthday. This past week a post from my friend, and teaching colleague, Marianna Hogan directed me to a wonderful article on the Chronicle of Higher Education's page titled, Small Changes in Teaching: The Last 5 Minutes of Class (http://chronicle.com/article/Small-Changes-in-Teaching-The/235583) by James M. Lang. I commend this article to your personal reading, along with the other posts from Prof. Lang.

Lang opines that, "most faculty members eye the final minutes of class as an opportunity to cram in eight more points before students exit, or to say three more things that just occurred to us about the day's material, or to call out as many reminders as possible about upcoming deadlines, next week's exam, or tomorrow's homework." In reading this I had one of those "cosmic whacks on the side of the head" as I recalled all too many sessions where I attempted to cram in one more performance or offer one more "critical" piece of advice that I knew would make every student a vastly improved trial lawyer. Lang reminded me of just how wrong I was. I was shamed into considering his solution and reminded it was a tool I had foolishly abandoned.

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.

Courses Tethering Evidence and Trial Advocacy/Mock Trial

The next course outline (see blog post of May 28, 2014 for further explanation) is for a tethered evidence and advocacy program or course. A tethered evidence and advocacy program is one in which the students simultaneously take a trial advocacy course and an evidence course. The two courses are coordinated and often taught by the same instructor. This version is provided by Wes Porter, Director of the Litigation Center and Associate Professor at Golden Gate University School of Law in San Francisco. We have blogged about Wes’ tethered Summer Trial & Evidence Program for students who recently completed 1L year– called 1st STEP – here and here.

This post applies to both the tethered program/course and an independent bridge course between evidence and trial advocacy/mock trial. In our Center, the bridge course is a 2-credit, skills course called “Evidence in the Courtroom” (EIC). We recommend EIC as a co-requisite with evidence, like the lab element that many schools offer, but many students take after evidence. I (Wes Porter) have created materials for EIC.

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

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

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

Moving Beyond Powerpoint to Engage Advocacy Students

Suparna Malempati is an associate professor of law at Atlanta's John Marshall Law School, where she teaches trial advocacy. This is her first guest piece for our blog, and we hope there are many more to come.

 When I began teaching Trial Advocacy a few years ago, I structured my class in a manner similar to the NITA programs.  I began class with a fairly short lecture (generally 20 minutes) about the day’s topic.  I then either demonstrated the technique being taught or showed a video clip.  I engaged the students after the lecture and demonstration with an exercise.  I thought that to be the best manner of organizing the class.  I spent hours preparing power point slides for each lecture, and summoned all my talents of effective presentation.  After all, I was a trial attorney.  I was able to engage jurors with brilliant closing arguments that lasted hours.  Of course I could hold the attention of students for a 20-minute lecture.

Summer Fun in Carbondale: "Experimental Design" with Diagnostic Trials, Acclaim Software, and a Music-Based Storytelling Exercise

My father-in-law was infamous within the family for something he called "experimental design." What that meant was any time he felt like he needed to put in some new landscaping, refinish a room, or start any kind of major or minor remodeling project, he'd go ahead and launch the project by, say, tearing out a wall or digging up part of the yard. There would be no advance planning, no blueprints, no cost estimates, and no time limits. Projects could take anywhere from an afternoon to several years. Some of the experiments were successful, others less so, but he was always happiest when he was working on one of his projects.

I have adopted a similar philosophy for my summer trial advocacy class, where I have the luxury of a low enrollment cap and no requirement to coordinate in advance with six adjunct faculty members. In the summer, it's just the students and me. The class usually starts about two weeks after the end of the EATS conference, which means my mind is brimming with new ideas inspired by presentations or conversations during breaks or meals.

This year, I integrated a couple of new "experimental design" elements into my summer class. Following are some preliminary observations about each of them.

Tweeting-For Better Case Analysis

TWEETING - FOR BETTER CASE ANALYSIS

By Professor Wes Porter

Professor Porter teaches evidence and advocacy courses and directs the Litigation Center at Golden Gate University School of Law 

Teaching case analysis is always a challenge.  The skill of case analysis is critical for our courses and mock trial teams - and for a career in litigation.  While jury addresses, witness examinations, and motions in limine involve case analysis, we miss something when this skill is not isolated from other parts of trial presentation.  We sought to better segregate the skill of case analysis and diagnose related issues independently.  We focused more on case analysis in our advocacy curriculum and created a consistent, written requirement (expectation) to segregate the the skill of case analysis.

“I got to get on the good foot…..” or Suggestions for Your Initial Class Session

Judge Bob McGahey guest blogs for us from time to time. He converted his presentation from EATS 2013 to a blog. For those others of you who presented, this is how it's done!

“I got to get on the good foot…..”

OR 

Suggestions for a Your Initial Class Session

By

Hon. Robert L. McGahey, Jr.

At the recent EATS Conference, I was assigned, along with Gillian Moore and Jude Borque, the topic of “Teaching in the Moment: Developing Your Critiquing Methodology.”  We were the last presentation of the second day – and I also ended up going after both Gillian and Jude.  No pressure, right?

Gillian and Jude were their usual brilliant selves, and I ended up using some of what they both said as a jumping off point.  I found myself talking about the kinds of things I do one the first night of class. In this post, I’ll try to summarize some of what I discussed. (And since I’m a child of the ‘60’s, who better to steal a title from than James Brown?)

Here’s the picture: it’s the first night of Basic Trial Practice. You look out at twelve eager faces. Well, some are eager.  Perhaps more are scared or trying hard not to look scared. Just as with a jury at the start of voir dire, you have to connect with them right away.  How? Well, like voir dire, you should think this out beforehand, and prepare.

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.?

A Storytelling Resource

As we all know, storytelling is an important part of good trial advocacy. In future posts, I intend to explore more thoroughly how to teach good storytelling to advocates. I feel this is an area in which we often fall short; I've long been frustrated with the standard "this case is about ________" formula we use so often in classes and at competitions. There's far more to good storytelling than a bumper sticker theme.

Recently, I was inspired by one of my trial ad students. Wanting to improve his advocacy skills, he enrolled in a Storytelling and Oral Tradition course at Southern Illinois University Carbondale. He loved the course and felt that it helped him immensely. I am planning to reach out to the Speech Communication Department at the school to see what collaborative opportunities we might be able to develop with this course; the opportunity for cross-campus collaboration is one of the real advantages of teaching at a law school on the campus of a comprehensive research university.

But in the meantime, after reading an article in an in-flight magazine on a recent trip, I've learned about and become enamored with The Moth, a storytelling program that works on developing and preserving the great American tradition of storytelling. Their website is http://themoth.org/. You can download podcasts of stories or even stream some of them live. Their website is a marvelous resource. On top of that, the stories are exceptional. I highly recommend going to the site and listening to a few stories. You won't regret it.

LEARNING OBJECTIVES AND REASONS

This post is courtesy of Mark Caldwell, Senior Director of Education: Specialty Programs for the National Institute for Trial Advocacy.

The Carnegie Report on legal education is generating waves of change throughout the United States as many law schools seek ways to bring practical experience to the doctrinal classes. I am privileged to be working with Professor Roberto Corrada at the University of Denver Sturm College of Law as he brings new ideas to the faculty of law. Over the past year members of the faculty have exchanged ideas through presentations on methods they are employing in their substantive courses.

This spring I attended a presentation by Deborah Zalesne, Professor of Law, & David Nadvorney, Director of the Professional Skills Center, CUNY School of Law. Their presentation, "Rethinking the Syllabus in Core Courses: Dismantling the Hierarchy Between Theory and Skills," related a number of exciting ideas about collaborative teaching. Included in the process they employ for first year students is the use of a highly detailed course syllabus. Many teachers make use of this tool to show direction in their classes. What makes the syllabus employed by Professor Zalense so innovative is how she weaves each day's work with how it relates to the practice of law and what tools the students should be employing as they bring the substantive knowledge learned in class to practice. Professor Zalesne and Director Nadvorney are working on a book that should be released later this year from Carolina Academic Press titled Teaching for Every Student, Integrating Skills and Theory into the Contracts Class . I expect it will be an interesting read for those interested in course design.

I was truly taken by this very creative idea - wishing that my law teachers had done something similar for me all those years ago. As I sat listening to the presentation I had one of those "Cosmic Whacks on the Side of the Head." At NITA we teach through a process that has four parts - Tell the student what our comments will focus upon; Play back the words they used that could be improved upon; Offer a means to "fix" or change their behavior; and give them a reason why changing their behavior would help them be more effective. My epiphany was a connection between providing learning objectives in a syllabus and telling people why we feel it important to include specific skills in a class session. In essence, taking what we do on a focused basis and make it more global.

Recognizing that many of the things we diagnose and fix are universal, why not present them in advance. Students often ask if they may have our notes of their performances. They are seeking a means of memorializing our suggestions for improvement. Some teachers even use a prescription form as a means of sharing their comments. (See the attached form that I sometimes give to my teaching teams at programs). By providing up front, and before student performances, specific learning objectives and reasons we offer added guidance to students, suggest where they focus their performances, help them understand the building block process of teaching skills, and makes the instructor accountable for what is taught. Some might find this a frightening concept while others might welcome the guidance. In either case it makes the process measurable.

Those who miss a class session are now afforded specific information on what they have missed and must now acquire to catch up with the rest of the class. It assists instructors by limiting the universe of what they must diagnose and fix.

The process in no way limits how an instructor must teach. There is still a huge degree of flexibility in terms of working with individual students. It does not suggest how a skill should be taught. It simply lays out a class focus and helps everyone appreciate how the course is designed.

In crafting my Learning Objectives and Reasons for a recent trial skills program - The Rocky Mountain Basic Trial Skills Program - I borrowed liberally from the work of Professor Peter T. Hoffman. His Building Blocks for Advocacy are a great set of learning objectives that any advocacy teacher should read before they offer a trial skills course.

For my current crop of skills courses I am writing detailed learning objectives and goals. I currently have no evidence that anyone reads these documents. I have heard from some members of my teaching teams they find the guidance helpful. I have no comments from program participants.

Before providing my first set of Goals and Reasons to a class I shared the idea and my draft with a number of colleagues. All liked the idea. A number commented to me the document was far too long. My good friend and colleague Terre Rushton suggested I was overly ambitious and that each workshop should only have three or fewer learning objectives. The teacher in me says Terre is right - it is foolish to expect students to take away more than a few points in each class session. My compulsive self says - set the bar high and offer more. Each student may only take away two or three points but those points may be different for each person in class. Give them a broad range and let them take away those points that best fit their needs.

Following is an example, excerpting a portion of a program schedule and then the Learning Objectives and Reasons for the session:

2011 Blog on Learning Objectives and Reasons

Using Checklists in Advocacy Teaching and Practice

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In 2010 Atul Gawande, a Boston based surgeon, published his ‘The Checklist Manifesto: How to get things right”  [Henry Holt and Co. LLC, ISBN 978-0-8050-9174-8]. The point of the book is that customised checklists help us all – no matter how experienced and clever – to do the job better.

There’s nothing new about checklists. For lawyers there is much transactional law that lends itself to ‘doing by numbers’, a reality that encourages the profitable use of paralegals.

For advocates too the notion of checklists is also well established. A trial note book is a super checklist, inside of which there are sub checklists and far too much distracting detail. Having sat grudgingly through a number of presentations on the necessity for a trial note book and the need to have it tabbed and colour coded etc. etc. ,  I did not expect to find a book on checklists interesting, let alone a successful change agent for how and what I teach.

Gawande’s insight is the bleeding obvious (with hindsight), namely that a checklist is only as good as its immediate relevance to the user.  Take the weekly shopping list – whether it be the adhoc list of items scribbled on the white board fridge magnet, or that new cell phone app you’ve been playing with that lets you put items against various categories on that shiny, bright little screen.  The former probably works better than the latter unless you can readily change those app categories. Why is this so?  The app categories are generic and are not the best fit for your shopping preferences.  There’s a best fit checklist in your head that reflects both your categories AND where you’ll find them in your supermarket.

For so long as you shop alone and you know what’s missing from your home shelves then your ‘inside the head’ checklist is very efficient.  The problem arises when you share the shopping: your ‘assistant’ is not inside your head, doesn’t share your priorities for filling the missing spaces on the shelves, doesn’t tour the supermarket in the same idiosyncratic way that you do, and probably wants to move along some of those shelf items and stock a few items of which you do not approve.

There are ‘would be’ high flyer advocates who share with some aspirant surgeons the misconception that theirs’ is a solitary craft for genius, overlooking that without continuous teamwork nothing notable is achieved. Developing and sustaining that teamwork is a high order application of sharing the shopping journey. The method is to start with the generic (like the app shopping list) and then tailor that checklist to the needs of the team so that it’s there, being easily and helpfully applied, during the preparation and during the performance.

By the way it’s a misconception to believe that such a checklist cuts off the capacity to be creative.  To the contrary, with everyone knowing what they are doing, and why, there is the opportunity to search for a better way.  And, having found it, the checklist is updated.

As advocacy teachers we can use checklists both for trial preparation and performance sessions. By showing that it works it is more likely (I hope) that our students will then carry over the habit into their practice. My present plan is to create a checklist backbone, to which students (and other teachers) can add such ‘reinforcing’ and finishing detail as meets their changing needs.

Paying false homage to my blog colleague Charlie Rose’s commitment to a rule of three I introduce the substantive part of this article by calling upon the 3A’s ( the advocacy teacher’s response to the 3R’s).  We have adversarial, audiences, and anticipation as the three touchstones of our craft.  I’ve yet to find a way to properly use this insight but astute readers may find a way and share it in the Comments box.

Within our adversarial system we define a contest within the legal elements of each cause of action or charged offence that is before the court. But that’s not the only foundation concept to which the student must pay attention. There is also, and always, identification of audiences and the respective objective needs and subjective wants of each audience. That this is so is readily seen as this article is being written by the hype around the forthcoming trial of a recent head of the IMF who engaged a hotel staffer who entered his New York hotel suite. Whether what then happened was an outrageous abuse or a consensual fling is for a New York jury to decide. The legal teams for both prosecution and defence are doing their darndest to create atmospherics for the audiences that give their side some advantage in the public space that is the media.

That leaves ‘anticipation’. This is a concept with several implications in the advocacy concept.  It is clearly difficult to grasp – the proof of that being the daily performances of too many advocates who clearly don’t have a clue about even one such implication. ‘Anticipation’ requires an advocate to recognise what their competent opponent would do and either prevent it, or minimise the amount of damage that their opponent can do.  The problem is that the less than competent advocate lacks the capacity to discern what a competent advocate would do, no matter for which party they act.

‘Anticipation’ also refers to what the good advocate will set up in each of their audiences: a sense of a case that is well prepared, will be well delivered, and which will be persuasive.  (There is a third aspect of anticipation to which we will turn later.)

The foundation of elements, atmosphere, and anticipation leads into a checklist of ‘required’ evidence. Both sides must engage in this task: one side to make sure they have it, the other side looking for the bit that is missing, or the bits that are there but are, for one reason or another, compromised. Hence the checklist requires the lawyers to look to the sources of evidence and then objectively evaluate the ‘weight’ that each bit bears.  So, early in the piece, there are reasons for advocacy to be taught tethered to an evidence course.  How better to understand the critical place of ‘credibility’ as a basic evidence concept than to see in the course of practising the art of cross-examination that a critical mass of mud on the face of the messenger is so very effective to cast doubt on the strength of his or her relevant and admissible message.

Given the sources and their perceived strengths and weaknesses the advocacy student must then consider the interwoven concepts of, ‘What is the most persuasive order in which to present this evidence?’ and, ‘How do I minimise on direct the target size of my witness who will be cross-examined when I finish?’ It’s at this point that the student is applying the guideline, ‘Start with your best, finish with your second best, and wrap the weak stuff in the middle’.

Following this skeletal approach the student should be able to run ‘trigger’ points from her or his checklist that bring to mind the topics of factual material that need to be drawn out from one or other witness in a predetermined, persuasive story.

With the law and fact content settled, a student advocate needs to pay attention to the presentation aspects of both their and their witness’ performances. For the novice this means that the checklist includes how their anxiety is going to be masked. It may include such detail as, ‘Are my feet and that of my witness facing towards the decision maker?’ ‘ Do I and my witness have a half glass of water handy?’ ‘Are we both able to bring our voice speed down to a good court room speed by syncing our toes with our voice speed, and having a note that has ‘SLOW’ written vertically on the page?’ and, ‘Am I now entering that 3D space with my witness to recreate for the audiences in this court room a past experience of the witness that is being retold by us today?’ That amount of detail is only necessary for the newbie.  The more experienced, where such preparation is automatic, merely writes:  ‘control anx’ to cover for that rare occasion when the automatic deserts them. That’s the beauty of the customised checklist: it’s there when it’s needed.

The checklist may also include a reminder about clothing and artefact such as tattoos and body piercings: doing whatever can be done to keep a prejudice in the audience turned off.

That done there is the checklist point about how and how early to introduce visuals that will entice the audience into a story that they can now ‘see’ as well as listen to.  There’ll be a cross link to that evidence topic of ‘more prejudicial than probative’ to remind the advocate who loves gore that some in their audience max out with a ‘low level violence’ rating.

Slipped repeatedly into this sequence will be the message, “Reassess your position. Should you now reinforce, back up, shift focus, or move forward?” That’s the essence of having our students acquire the inner knowledge that all good advocacy is both reactive and pro-active to the immediate environment.

Making or not making objections to questions or assertions by the opponent is another application of the reactive/proactive approach.  The common objections lend themselves to a checklist.  Introducing that list – for the novice- are two questions: 1. Do I have a good faith basis for this objection? AND 2. Do the tactical benefits (now and for possible appeal) outweigh any tactical downside (such as antagonising a jury)? Once again the ‘objections’ checklist provides a good link with the parallel evidence learning.

By dint of explication and repetition above I hope that it is clear that this article does not endorse generalised checklists of the sort that might be otherwise called templates or precedents.  Sadly, but fortuitously for adept advocates, there are plenty of situations where the witnesses have used such generics.  Sometimes the advocate just knows that the witness will have followed, for good or ill (and usually with their assessment brain in the ‘off’ position) some inappropriate checklist. It is good to anticipate such a witness because worse than no checklist is the slavish following of the wrong one. The cross examination of such a witness must eschew belittling but leave the other audiences in no doubt as to the lack of witness credibility.

Our students need to know that a checklist is a map for macro items and a reminder of those things that are important to the student at and around the time that the checklist is prepared.  Just as effective CV’s change with time so should a useful checklist.

A useful checklist uses topics (just like the agenda for witness examination).  It is short (like an opening and a closing). It is easy to find.  It will do either or both of: ‘Do this and confirm you have done it’, or, ‘Read this and do it’.  It does not include explanation because that is a given before the checklist is prepared. Just as teacher and student find it useful in basic training, so later that student, now an advocate, can make it useful for advocate, witnesses and anyone else on the team.

I can see an advocate walking up the stairs to the court house. The mobile phone is open, they have closed out the non work apps and they are looking at their pre-court checklist. There are many things on their mind.  Fortunately the last item is, ‘turn this thing OFF’.

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

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.

The future of Advocacy Training? iPads and iPods and Podcasts!

Folks:

Visual aids as an effective teaching and learning tool are well known. See on this Blog Chris Behan's entry about Lonesome Dove (available here)

Another use of such aids is to reinforce some fundamentals for students by making sight and sound record that students can access as often as they want. Posted here is an example of a podcast that you could easily produce and distribute to students. I have produced several of these for use in trial advocacy courses. They allow the student to get a mini-lecture, see a demonstration and then hear a discussion about how to perform the skill correctly. I've also done mp3 podcasts as well.

This happens to be one of a series that is available through www.roseadvocacy.com, the website that accompanies the second edition of my trial advocacy book. I created it on a Macbook Pro using iMovies. You can get the same effect with any of a host of video editing programs available on a windows platform too.

It would be good to see and hear a few more such training aids on this blog so we all look forward to your posting them.

Enjoy!

Charlie

The Pedagogical GPS of Advocacy Teaching

Wes Porter, a professor at Golden Gate University School of Law, was inspired by Judge Tina Habas's recent View from the Bench: The Missing Link blog post. His thoughtful and responsive post follows:


I printed out Judge Habas's post for my Litigation Center bulletin board immediately.

Judge Habas has identified both a universal goal in modern legal education and a critical distinction between advocacy/skills courses and doctrinal courses. The universal goal is, the component parts should always link to the overall learning objectives of the substantive subject matter. For instance, in a doctrinal course like evidence, students in my class own a "pedagogical GPS" - that is, they can stop me at any point and ask “where are we?” They own the right to ask where (or how) a specific lecture topic, hypothetical problem or even a tangential classroom discussion fits into the "big picture." This idea is not mine. Many educators believe (and write) that learning must always relate the parts to the whole. Law students do begin to take ownership of their GPS the very first time the professor responds appropriately and takes 2 minutes to relate the immediate topic to the larger learning objectives of the course.

The critical distinction with advocacy/skills instruction is, the tables are turned. We, as skills instructors, must demand the connection (the "link" as Judge Habas writes) between the many advocacy exercises and mock trial performances and the overall story, case theory and theme. Without knowing, we do it all the time. We ask, "why are you asking that question?" or "stop right there, what will you say in summation about this line of inquiry?" But just as often, as Judge Habas suggests, we can run the risk of "gloss[ing] over this requirement."

I offer two simple ways to facilitate the constant connection, and make known our expectation of this running link, between the “parts” of trial and the “whole” – a persuasive story, theory and theme.

First, instead of (or in addition to) "scripts" for witness examinations and jury addresses, I require brief, bullet-point “goals” from students. These goals are distributed to the observing students during the performance. My students expect that the instructor will stop the performance and ask our performing students and/or observing students to relate a specific examination question or jury argument to one of the pre-identified, bullet-point goals. It becomes a group expectation that all are listening, thinking and voicing for the link.

Early in the semester, I front my expectation of the “running link” through a cross examination lecture. I demonstrate a cross exam of a student with my bullet-point goal displayed on a large screen behind the witness as I ask questions “linked” (and intentionally not linked) to that goal. I also ask observing students to then identify the bullet-point goal in good student demonstrations.

Second, after nearly all witness examination exercises, I regularly require an observing student (not previously selected) to deliver the corresponding portion of the closing argument. The follow-on exercise can be quick and serves several purposes. Primarily, the observing students listen to the performance and think about it in terms of the relational analysis Judge Habas describes.
Even better, when the corresponding closing(s) from (an) observing student(s) fall(s) short, the instructor need only ask the group, why? Was it the fault of the performing student?: lack of an overall goal? the witness examination was not clearly linked to that goal? Or was it the fault of the observing student?: the failure to listen? failure to understand the overall goal? failure to understand the examination? The group observations and discussion will surprise you. In a few extra minutes, the group, as opposed to the instructor alone, will regulate and access the “link” between the trial exercise and the overall goal to persuade a trier of fact.

Thanks again to Judge Habas. Much appreciated.

--Wes Porter

A Teaching Team - Selecting and Maintaining

Contributed by Mark Caldwell of NITA.

A number of colleagues have asked me how I go about assembling a teaching team and then keep them happily engaged in teaching during programs/semesters. Mrs. Caldwell, my mother - not my wife, taught me very early some simple rules that apply to life - and work well when serving as a Program Director. They are:

1. Be polite;
2. Say thank you (often);
3. Offer to help;
4. Show you are gracious and understanding.

Let me explain how I employ these basic rules.

Be polite

Being polite takes many forms. It begins when you initially design the program. You want to invite people who are best fitted to match the content of the program. For example, except in a few states (like Florida), you probably do not want to invite lawyers who focus on criminal defense to teach at a deposition program. If you are teaching a program for legal services lawyers, you want to invite lawyers who have some experience working in public service. Lawyers who have only worked in large private firms may not appreciate the limited budgets and resources of public service organizations. Recommendations to make use of digital animations do not always play well to lawyers who can’t afford paper charts. Likewise, specialty areas of advocacy - such as bankruptcy or tax controversies - may have different procedural rules and customs. In these cases you want to make sure you staff your course with those who know these distinctions.

You are polite when you take the time to invite people to participate early. Waiting until a few weeks before a course begins often conflicts with professional and personal commitments. Someone either really wants to teach or owes you a favor if you place them in this uncomfortable position. Besides, this type of delay only increases the likelihood you will have heartburn as well. Start as early as possible when inviting people to teach. When you are first on someone’s calendar, it makes it far more difficult for them to ask to be excused.

When you tell someone why you want them to be part of your teaching team you show your manners and appreciation. When I invite someone to teach for the first time, I let them know why I want them to be part of the process. Some call this flattery - I call it honesty. Yes, the invitation may appeal to their ego but it usually helps you secure a well-rounded team. NITA and I work hard to be color blind. The reality is you need to reach out to all types of people to create a successful team - you really aren’t blind at all. Balance; politically, by client representation, by gender and race, etc. sends an important message to students. You show your manners when you are inclusive - not exclusive. Inviting just your friends may be fun for you and your teachers but it does not always send the best message to students.

Say thank you!
It is perfunctory to send thank you letters at the conclusion of a course. Take the time to craft an original letter (even if it is word processor generated to each instructor). Your letter should let your colleagues know how they helped the program to be successful. It should point out the high points of the course. It should also ask for their suggestions on how you can do things better in the future. If you receive suggestions and ideas - acknowledge them and take the suggestions seriously. Finally, sign the letters yourself and include a personal hand written note to truly personalize your letter.

Let people know during the course that you appreciate them. Many of these people volunteer their time and expertise. People take vacation time to teach. Solo practitioners give up real money when they teach. Recognize this donation. In a private moment let an instructor know you appreciate what they are doing and that you are glad they are at your program. In a public moment recognize them in a special way in front of students and their colleagues. Give as many instructors as possible a moment when they can shine in front of the assembled masses.

If your budget permits it, a small token of appreciation is always welcome. If you can, make it something that only instructors receive - even a coffee mug can say Program Instructor. Unless you believe instructors are assembling a service of eight, change the gift each year or with each program. If you can, splurge on something they will proudly display. Until you reach my age, a brag wall is important.

Whenever you can, direct the students to express their appreciation publicly. I was never so flattered and honored as when a tribal advocate sang an “honor song” for the teaching team. Group photographs, standing ovations are better than coin of the realm.

Feed your teachers - often. Collegiality is an important part of programs. People often teach because they get to see and play with friends. Breaking bread is one of those times when people can relax and enjoy each other’s company. It doesn’t always have to be the swankiest restaurant in town. Sometimes a hamburger is sufficient - especially if the conversation is good. Instead of asking teachers to submit their receipts for reimbursement, pay the tab yourself - it all comes from the same budget.

Offer to help

New instructors want to succeed. For many they must master the process of teaching in addition to the specifics of the course. Help them! Offer a teaching clinic for first time instructors where you explain the teaching model and allow them to practice. Answer their questions and invite more. Let them know you will provide assistance in the form of partnering them with an experience instructor or you will sit with them for their initial workshop. Offer constructive critiques (in a private place) to help them improve. Give them articles, teaching guides, cheat sheets, or whatever else you can that will give them a higher level of comfort.


Those who teach for us are busy people. You want them to be successful as teachers. They want to be successful. Giving them the tools needed to be successful is always appreciated. What kinds of tools are helpful. Get instructors the program materials, schedule, and administrative information as early as you can - a week in advance in not early. If you are using a new edition of a case file or text let them know what has changed - so they are not embarrassed in class.

Craft a schedule that explains the goals of each segment. Something that simply says, “Conduct a cross examination of Jennifer Jones” when you really want to focus on more specific points is not how you help instructors.

Teaching notes and faculty meetings where you explain goals, give pointers on teaching, allow discussion and questions, and raise issues about student problems are appreciated. Some instructors may not take the time but even they appreciate your effort. You may be surprised when you learn your most experienced teachers are the ones who pay the most attention to your guidance.

If an instructor participates in a lecture or demonstration, offer to share materials from past programs. Seeing what others have done in the past is a very comforting gesture. They may simply copy what you give them or use your model as a springboard to their own unique interpretation. Few people like to start from scratch if there is an example available.

If something comes up during the course that requires them to be out of class, offer to substitute for them. If you can’t substitute, rearrange the teaching schedule so an experienced teacher goes solo and less experienced people are still partnered.

Teach people how to use any technology that is part of the class. Budgets often no longer allow for paid video operators. Offer a session that shows (experientially) how to run cameras, playback equipment, digital projectors and document cameras. If you have written directions - share them!

When an instructor will be conducting a lecture/demonstration, set things for them so when they enter the classroom their focus is on their presentation. Reload slide shows, set the room for the demonstration, provide microphones and paper charts/white boards. Offer to be their witness or ask questions in that uncomfortable time after they ask, “Are there any questions.” Make sure you are the first to applaud at the end and then thank them.

People forget things. Have an unending supply of writing paper, pens, extra materials, and name tags. If necessary, go get these materials for the instructor and bring it to them.

Help them with paperwork. You or a member of your staff should be there to explain how to complete forms, provide extra forms (for MCLE, reimbursement, etc.). Provide reasons why they need receipts, or must complete a specific form. These people do not have their trusted right arm with them to take care of details - help them.


Show you are gracious and understanding

You need to be the calmest, most unflappable, most easy going person at your program. By never letting people see you sweat you create an environment that makes teaching fun.

Remember - shit happens! People need to cancel at the last moment for emergencies, client crisis, judge’s orders, even illness. When this happens be gracious, concerned, and understanding. Your colleagues do not do this on purpose. Even if it makes your life difficult, you must not employ the guilt trip, roll your eyes, sigh deeply, or cry. If it is an illness or personal emergency follow up to let your colleague know you are concerned with more than filling the teaching slots.

Mistakes, personality conflicts, student push back, and even disagreements do happen at programs. Show forgiveness, offer suggestions, change rotation schedules, and mentor. Many instructors may be giants in the courtroom but novices in the classroom. Bring your experience to bear and help them get past new classroom experiences.

Sometimes demonstrations fall flat. Unintended insults infuriate participants (and even colleagues). Teaching points are not made. When such a crisis occurs resolve it with grace. You may privately need to scold someone and negotiate a fix or a departure but do so in a way that does not burn bridges. We have all made similar mistakes in our teaching careers. Showing understanding goes a long way in helping someone become a better teacher.

Final thoughts

My last piece of counsel is that if someone does not play well with others do not invite them to return. While problems may occur, do your best to mitigate them. Use others you trust to help buffer the problem. Finally, recognize that you cannot be everywhere at once. Trust your judgement in who you invited to teach. Remember your manners!

Administering a Trial Advocacy Program: Adjunct Coordination

This post was written by Thomas Stewart, the director of trial advocacy programs at St. Louis University School of Law.

There are three things to remember about teaching;
know your stuff; know whom you are are stuffing;
and then stuff them elegantly.
Lola May


We are all familiar with the need to impart sound critiquing methodology to our advocacy adjuncts, but I wounder how many of us realize the need our adjuncts (and thereby our students) have for adjunct training in the substantive areas of trial practice. We all try to hire gifted advocates who have sound trial skills and who we hope will be effective teachers for our students; and while our adjuncts have mastered the art of advocacy in their role as trial lawyers, many lack the the teaching methodology, understanding, and terminology to deconstruct sound trial practice into digestible chunks for our students.

At Saint Louis University School of law, our Trial Advocacy I program has three basic component parts; 1) a two hour "Large Group" lecture (of approximately 72-80 students) where I am responsible for giving the practical skill approach overview in the various aspects of trial work ( voir dire, opening, direct, cross, ect); 2). the "Small Group" or clinical section which is limited to eight or fewer students and taught by an Adjunct Professor (typically a trial lawyer or Judge who used to be a successful trial lawyer before taking the bench); 3) the finial trial where teams of two students trial a case to conclusion in the format of a trial competition but to a live jury.

While this format has its advantages, one disadvantage is the potential for mixed messaging between the approach taught in the Large Group Lecture, and the one taken by the adjunct during the critique/assessment in the small group. For years we would attribute these discrepancies to style, arguing that as each lawyer has his/her own style then it was only natural for the students to be told diametrically different ways to approach a given task at trial.

While style can account for differences at the margin, all good trial lawyers should be able to agree on the fundamental approaches to Opening Statement (theme, theory, storytelling, use of language of visualization ect.); direct (open ended questions, narrative story questions, how to lay foundation for exhibits and move their admission, offers of proof), cross exam (leading questions, steps for impeachment,) and closing (theme, theory, use of instructions, referencing a joint experience of trial ect.)

Our effort to combat this mixed messaging phenomenon culminated in our first ever half day Advocacy Instructor Training Seminar, where, in addition to discussing critiquing methodology, we focused on ironing out any differences we had in our substantive approaches to advocacy. I approached this seminar in a collaborative manner telling the twenty plus instructors who gave up a part of their weekend; " I am going to tell you the approach I am taking with the students to the various aspects of trial. If you disagree with the fundamental approach speak up, and we will arrive at a group consensus. When we leave here today, we will all know what we are all going to teach, and how we are going to teach it." I emphasized to the instructors that I was not trying to micromanage their small group sections, and I fully expected them to add to the fundamental approaches with which we were arming our students. It just that I didn't want our fundamental approaches to contradict each other.

More than one instructor has told me after out training seminar that they knew the substance of the approaches we we talking about but lacked the language and ability to teach what they knew. This giving voice to the adjuncts knowledge and experience helps them begin the journey from trial practitioner to teacher/coach.

We now have the added benefit that our Advanced Trial Practices instructors will know what and how the Trial Advocacy students have been taught, our Trial Team Coaches will be able to build upon a consistent approach to learning the art of advocacy.

Cordially, Tom Stewart