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.

The Cosmic Whack on the Side of Mark Caldwell's Head

Reading Chris Behan's recent blog post provided the sense of guilt he had hoped to achieve. My lack of recent writing was more a function of the absence of a creative thought about advocacy teaching these past months. Over the years I found that much of what is new in advocacy teaching is really not "new" but a variation on a theme. I look back at many of the things I use that colleagues call innovative and realize these ideas came from sources outside the law but within the teaching and coaching communities. Sadly, I confess that many of my forehead slapping realizations came from observing what gifted teachers and sports coaches do as they work in elementary and secondary schools. These are not new ideas but adaptations of the successes of others.

I write today about my most recent "whack on the side of the head." Sometimes the most effective teaching comes not from the instructor but the student. I know this may sound heretical but it really is based on sound educational principles.

Teacher Advocacy Training - University at Buffalo Law School

The UB "TAT" Crew - Over 20 advocacy teachers who successfully completed Teacher Advocacy Training this past weekend


Dear Colleagues:

Congratulations to the advocacy professors from UB who successfully completed a two day intensive Teacher Advocacy Training (TAT) conducted at the University at Buffalo Law School by professors from Stetson and Maryland. They trained for two days on the What/How/Why Critique methodology taught at Stetson and used in both "Fundamental Trial Advocacy" and "Mastering Trial Advocacy," successfully completing all phases of the training and receiving their official TAT designation.  

This weekend Professor Stephanie Vaughan, Professor A.J. Belido de Luna and I took a trip to Buffalo New York to spend some time with the most excellent members of the advocacy faculty at UB. Chris O'Brien and the honorable Tim Franczyk invited us to come up and teach critiquing, sharing ideas about the best practices when critiquing students and developing advocacy courses. This request grew out of our annual EATS conference at Stetson and is just one example of the collaborative way we are working together to further practical legal education. 

During our conference this year we offered to come to other law schools and provide, pro bono, a training experience designed to bring advocacy teachers to another level. The intent was to provide a masters level experience in critiquing methodology without substantial cost to the institution. UB took us up on the offer, providing funds for travel and lodging through a grant that is part of their new Advocacy Center. The result was a comprehensive hands on event that trained around 20 Buffalo adjuncts in some specific critiquing methodologies, classroom techniques and course development. The program included small group work, students who performed, professors who taught, and were then in turn taught again - by our team. A good time was had by all and some incredibly collaborative learning took place.

What an incredible group of folks! A more professional, collegial, and capable group of teachers would be hard to find. Our team was incredibly impressed with their commitment to the process and mastery of the system. We count ourselves fortunate to provide them with their official "TATs" of completion and are looking forward to many wonderful years working with all of them to find the best way to teach lawyers, whether students, practicing attorneys, or even members of the bench.

If you have not been to UB yet and get the chance - go. The city is a hidden gem and the law school is producing a vibrant legal community dedicated to the practice of law and the development of their students. All three of us were impressed and humbled to spend time with them.

Myself, Professor Vaughan and Professor Belido de Luna are so grateful for the chance to come up and teach, for the open hearts that the UB group brought to the process and the professional growth we all experienced this weekend. What an absolutely wonderful experience!

See you down the road,

Charlie Rose

Judge Robert McGahey strikes again! Read his latest guest blog post below. 

When I ride the exercise bike in the morning, I read articles on my phone from The Washington Post, The New York Times, Slate and other sources, to distract me from how old and out of shape I am. (Full disclosure: I also read The Guardian and The Daily Mail for soccer news.)

This morning I found a brilliant article from the New York Times by John Kaag that really hit home to me. A link is attached: The Perfect Essay. The article speaks strongly to the power that a critique can have on an individual, a power that those of us who use critiques as a teaching method can easily forget. I sent this out to some of my fellow advocacy teacher earlier today and got positive responses, including this one from Amy Hanley, an AG in Kansas and an experienced NITA teacher: “I remember every detail of the harsh critiques I've received over the years. And they were valid!”

Please read this article and reflect on how you critique, not just the words you use, but the feelings you convey and the model you present. For good or ill, our critiques are helping to create the next generation of lawyers who will be doing what we consider to be one of the most important things on earth: standing up in courtrooms and advocating for justice.

And after you’ve reflected, please share your thoughts here on the blog. Thanks.

--Bob McGahey

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.

Preparing Students to Receive Critiques from Others

We've had some good discussions on this blog about the art, science and challenges of critiquing students.  (Link to those discussions here.)  We've focused on critiquing theory, instructor preparation, best practices, dealing with "pushback" and other related topics.  Most of the blog posts and comments focus on what qualities instructors can develop to enhance the quality of critiques and maximize learning opportunities: preparation, understanding, flexibility, respect, firmness, competence, to name just a few.  With sufficient preparation, practice and experience, we can establish and maintain conditions for successful, controlled, harmonious critiquing experiences--for the most part.

But what about those situations when our students will be critiqued by outsiders--people who aren't a formal part of our programs--such as judges, volunteer jurors from the community, guest instructors, or trial competition judges?  Student feedback from a recent trial competition reminded me that we need to prepare students and establish expectations for these critiquing experiences as well.

Let me share a horror story with you.  It's a true story.  Names have been omitted to protect the guilty.  I think I've recovered sufficiently from it to be able to discuss it calmly.  The situation: the final jury trial for my advanced trial advocacy class.  To make it as realistic as possible, I brought in a jury of volunteers from the community.  A federal district court judge presided over the trial.  The students had negotiated a pretrial order, created their own jury instructions, argued motions in limine; in short, had done nearly everything I could think of to make the trial as realistic as possible.

The trial was also realistic in the way it played out.  One pair of advocates--the defendants--had prepared for the trial, using the rules of evidence and procedure as shields and/or swords to advance their own case theory and obstruct the progress of their opponents.  The plaintiffs, in contrast, had blithely assumed that anything in the case file would be admissible and that all possible issues had been resolved in the two motions they had argued before the judge.  The plaintiffs did not even bring a copy of the federal rules of evidence with them to trial.  On top of that, as a partnership, their knowledge of evidence was unusually poor; I doubt they understood, for instance, the difference between hearsay and authentication.  Given these two approaches to trial preparation, the defendants--predictably--mauled the plaintiffs.  It wasn't even close.  Key pieces of the plaintiff's evidence were excluded, and the defense managed to admit nearly every questionable statement or exhibit into evidence.  

While the jury was deliberating, the judge--experienced in diplomatically critiquing law students as well as lawyers--gently pointed out to the plaintiffs that they had made several key errors in the trial.  The plaintiffs, perhaps delusionally hoping the verdict would still go their way, appeared to listen politely.

A few minutes later, the jury returned with a verdict for the defendant.  Pursuant to my normal custom for that class, I then asked the jury if they would like to provide comments and constructive critiques to the attorneys.  Before I could step in, a juror commented, to the accompaniment of agreeably nodding heads by the other jurors, as follows: "The plaintiffs looked like they didn't know what they were doing.  Every time the other guys objected, they got confused. They seemed to lose their cool. They never objected, even when the judge was looking at them like they should."  Then, making the comments even more pointed, while trying to soften their impact, he changed from the third-person to the second-person: "Maybe you aren't as experienced as the defendants, I don't know, but they ran circles around you in the courtroom.  I think you guys can definitely get better, though, and you have a lot of potential."  Not the most diplomatic or sensitive critique, but it was accurate.

Then came the response.  One of the plaintiff attorneys had reached her limit.  She stood up, wagging her finger at the jury, and explained that the other side had ambushed them and had cheated, the judge had made it impossible for them to try the case they had prepared, the jurors were obviously gender-biased (in this case the plaintiff attorneys were both women and the defendant attorneys were both men), and finally, as if my own personal embarrassment at this train wreck were not enough, she blamed it all on me as the wagging finger turned in my direction: "And what you guys don't know about the objections is, BEHAN [author's note: her tone of voice suggested my name might have been a synonym for a loathsome disease of some kind] TOLD US WE WERE NEVER SUPPOSED TO OBJECT IN THE COURTROOM.  OTHERWISE WE WOULD HAVE!!!  DO YOU THINK WE DIDN'T KNOW OUR OPPONENTS WERE CHEATING ON OBJECTIONS?  WE FOLLOWED THE RULES.  WE LISTENED TO BEHAN.  THAT'S THE MAIN THING WE DID WRONG."  

For the record, I said no such thing as "never object in the courtroom," although I have regularly advised students not to make pointless objections simply for the sake of making them.

I hope no one else has had a similar experience, but my intuition tells me I cannot possibly have been the only person to watch a student blow up in response to a third-party critique.  This is, after all the generation that grew up receiving praise for everything: participation ribbons, soccer games with no score kept and treats at the end for everyone, helicopter parents hovering and dispensing constant affirmations and self-esteem boosts.  They often equate effort with excellence, not realizing that it is possible to try very hard and fail, or to prepare and fall short.

When they are being critiqued by outsiders to the program, people who haven't been trained in critiquing and might know nothing at all about advocacy or trials, the possibility for unfortunate personal interactions is high.  The danger is heightened, I think, at competitions or events (such as final trials) in which they have invested significant preparation time.  I've noticed, for example, that the main criteria for some competition judges is availability, not competence or trial experience.  Recently, some of my students in a trial competition had the disheartening experience of being critiqued by a group of lawyers, none of whom (as we later learned at the reception) had ever actually tried a case.  Given their experience level, their comments were about as useful as one might expect.

So--how to prepare students to be critiqued by others?  I have a few ideas of my own that I'll share, but I'm hoping a few blog readers will provide comments.

First, it's important to explain what is about to happen, namely, that someone else with a different style, different viewpoint and different training is going to provide comments on their performance.  They need to understand that the critiquing parties may not follow the NITA 4-step method (Headnote, Playback, Prescription, Rationale), the Stetson 3-step (What, Why, How) or even your own personal classroom style.

Second, they should watch, if possible, the classic Christopher Walken Saturday Night Live sketch, More Cowbell.  Everyone they meet should be, to them, the great Bruce Dickinson, and if Bruce Dickinson wants more cowbell, then they'd better give him more cowbell!  Seriously, I use this sketch at the beginning of the semester in my trial advocacy course.  I teach a weekly lecture, and we have several adjuncts who teach the practice labs.  I feel it's absolutely important for my students to understand, appreciate and follow their expertise.  And this applies to outsiders such as judges or jurors.  They are all experts in observing other people and making decisions.

Third, they need to understand that a critique is a one-way conversation in which they listen while someone else talks.  Protests, arguments and explanations should be kept to themselves.  Perhaps in private conversations with the critiquing party afterwards, they can discuss the issue, but while being critiqued, they need to listen and be in receive mode.  

Fourth, it's just a critique!  If they don't like the advice they're receiving, they are free to ignore it or do something completely different.  Even if the advice is good.

Fifth, focus on the opportunity.  Nearly every critique contains something that a humble advocate can take away and use for the future, even if it hurts to hear it at the time.  We've all heard painful critiques in our lives, and as part of preparing our students to receive outside critiques, it's appropriate to share these stories.

One other thing: when I have the opportunity to exert some control over the critiquing process, I do.  I remind jurors and judges that these are student learners, and I request that their comments be constructive and respectful.  I ask focused questions, such as, "Tell me the most effective thing the plaintiffs did" or "What was the single biggest factor that caused you to vote for the defense in this case?"  It isn't always possible to do this, of course, but it does help set the conditions for a better critiquing experience for the students.

So--what are your thoughts on preparing students for outside critiques?  Any good horror stories?  Please share by clicking on the link below and commenting on this blog post.

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

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

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

"Okay."

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

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

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

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

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

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

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

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

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

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

 

 

Thanks, Thoughts and a Tingle

I wanted to continue discussing my thoughts about critiquing today. Many thanks to those of you that have sent me emails letting me know what you are thinking in this area. It is always good to hear from you. The need to talk about this topic, particularly now, when the world seems to change so quickly and completely in such a small period of time, is more critical than ever if we are to advance this thing that we love. I thank you for the things that you have said that make me think, we all know how hard it can be to get me to do exactly that. I wanted to share some of the thoughts that have sprouted from the fertile soil of your comments.

One of the main reasons Chris, Hugh, and I started this blog was to create a forum where we could share ideas. We wanted to capture the excitement and possibilities of a NITA training program where we were all together teaching each other how to teach. We have had that experience at Stetson in our annual Teaching Advocacy Skills program and the attendees there expressed a desire to be “connected” to other advocacy professors in those in between times. Not being one to ignore something that hits me in the face we began this blog. It is designed to be an open forum where all of us, regardless of the materials that we use or the methods that we employ, will share ideas. Teaching teachers is hard, it is fun, but is also a critical step that we must take to ensure that our craft flourishes.

We are, all of us, constantly learning from each other. Mark Caldwell is one of the absolute best NITA program directors at managing that process, and while I am always learning when I sit in a NITA program, that learning is exponentially increased when Mark runs the program. I must share with you that one of the first things I tell every advocacy teacher who comes to learn from us at Stetson is that they absolutely must experience NITA to become a complete teacher of advocacy.

I think having a law professor or two in a NITA program is a plus because we have the luxury of time that is denied to the practicing attorney. It brings a different perspective to the process and one that is helpful, although over time it does run the risk of becoming stale. I believe the practicing bar and law schools must grow together to create the best structure that allows us to guarantee quality advocacy teaching beginning in law school, through CLE programs and beyond. We must hang together, us skills professors and practicing lawyers, or we will all surely hang separately. For that same reason I always bring practicing lawyers to my Stetson conferences, there input is so valuable to the process and they make for great drinking buddies too.

I would be a much poorer teacher now if I had not been fortunate enough to have been introduced into the world of NITA teaching by Jeanne Jordan, Sandy Brook, Tom Singer, Jim Seckinger, Terry Rushton, and Mark Caldwell. It began with trial team at Notre Dame, and has grown into a calling. I’ve said thank you in other venues, but let me express it again here publicly. They are a small part of the list of folks that have taught me how to be a better teacher, lawyer and person - but they sit very high on that list. If you are interested in who else might be on it you can read it in the acknowledgments page for the second edition of my trial advocacy book. I put the names of those with whom I have learned there instead of a table of cases - seemed like the right thing to do to me. I also spent a good deal of time thanking NITA and John Baker for his leadership in this field in the preface. If not for NITA I would have never been given the opportunity to learn enough to have this tremendous opportunity and I am forever grateful.

It is that very gratitude that drives me now. I believe that we need to take the time to think critically about what we do and how we do it if we are to keep ourselves relevant for future lawyers. With that in mind let me share an idea about a way of thinking about teaching in a CLE program or an advocacy class. Of course it is built around the RULE OF THREES.

I think the best advocacy teachers break their teaching method down into three general approaches: (1) Drills, (2) Some version of the NITA Method that focuses on an element of a specific performance, and (3) what I think of as the Holy Grail of Advocacy teaching, the transformational critique - AKA “The Tingle.” You can imagine these three elements of teaching advocacy using a lot of different metaphors, but for me it is easiest to think of it either as food, art, or sport. Let me explain.

Food:

Imagine that you have to prepare a bowl of food for someone to eat. This food needs to be as nourishing as you can make it, as tasty as possible, and pleasing to those who will consume it. You cannot have a bowl of food that consists of only element - it gets boring and leaves the person eating the food wanting more. I don’t care how much you like mashed potatoes, by the third day of eating it you want something different - not only do you want something different, you need it, and if you don’t get it you let the cook know about it. So what to do?

Our teaching should be more like a hearty bowl of stew, with many different elements that combine to comfort you and give you nourishment. The vegetables in the stew could be considered the drills, a staple so to speak. While they may be bland and boring for the most part, they bind things together with a simple taste that is comforting. We know exactly what we are getting when we bite into them and we feel secure in what we are getting.

The critique method that focuses on an element of the performance is the meat in the stew (apologies to the vegetarians out there, just insert the word tofu instead, although it loses something), we have to have it. We look for it, we chew it thoughtfully and it is the thing we expect to get, and we are very unhappy when we get the last bowl of stew full of vegetables but with no meat.

The stock, the broth, the juice of the teaching experience is the case analysis. It is present everywhere and without it all we have is a bowl of vegetables and some raw meat. The stock is both separate from the vegetables and meat, and yet containing elements of them within itself.

The transformative critique occurs when we dip our spoon into the bowl and get that perfect combination of case analysis, drills and specific performance feedback. It has just a hint of some seasoning that we find hard to recognize, but that makes the taste explode in our mouth. Without the seasonings, without that mix, the stew is bland. It will nourish us, it will comfort us, but it doesn’t really fulfill the hunger that we feel. We are left wanting something more.

Now you can ruin a stew very quickly with the wrong seasoning, and too much can make it inedible, while no seasoning just gives you a bowl of meat and vegetables in hot water. Like the seasoning a good stew the tingle is used sparingly, but everyone knows it when they taste it. We need to have the courage to reach for the seasoning when we need to, and we should devote ourselves to becoming sufficiently good cooks in the classroom that we sense when it is time to add a little pepper to the mix!

Art:

When most folks sit down to learn to play the guitar they don’t just grab it and play. They begin with simples scales and chords, mastering each fundamental before moving on to the next. You take as much time as you need, better to go slow and get it right than to go fast and get it wrong. Our drills are like the rudimentary scales that a music student practices. They lay the bass (base) line for everything to come.

Once we have graduated from scales to simple chords we begin to play music. This first step of performance creates ample opportunities for the music student to learn. They make mistakes, get things wrong, miss notes, the list of specific performance elements to fix can be quite long. This is when we use the NITA method or its equivalent to fix specific problems. It is, in fact, the vast majority of what we do.

Eventually something special happens and an opportunity for individual growth presents itself. It might be about rhythm, playing with expression, interpreting the music, or getting in touch with your inner muse. When those moments happen magic comes out of a wooden box with some silver strings. It doesn’t happen all the time, but it never happens if the scales and chord progressions were not learned. The student is transformed into an artist, we transform our students into advocates.

Sport:

When we first learn to play the sport of football we learn to block and tackle. But it is much more than just that, on the offensive line we break the blocking down, establishing foot placement, arm position, leverage, orientation, a host of minuscule details that must be learned, practiced, and mastered so that we can move on to installing plays in the offense. The same is true of the drills and simple exercises that we have students perform. They law the foundation for all that follows. If the student cannot perform these basic tasks then we cannot install the offense, we can’t perform.

After we have mastered the fundamentals of blocking and tackling we begin to learn our location on the field, the other players that we act and react with and to. Now we are beginning to play football, albeit at a very basic level. The coach stops us when we make a mistake and we “run it again,” usually until we get it right. He has all day to wait because he knows that we must master each specific element of the performance so that the offense can be installed and magic can enter in. If you we don’t master each piece it will never work right. We do the same thing when we are teaching at our best - they can’t practice something that is wrong because Murphy’s law will ensure that is the only thing they learn.

Next the offense is installed, and we forget our fundamentals, forget how to block because we are worried about being in the right place at the right time. We have all seen this in advocacy programs, move on to something new and it seems as though nothing accumulates. That is really not true, it is just that the stress of installing the new “play” makes them think, and when they think they cannot perform.

We struggle through practice after practice, and then one day it clicks. The coach changes an assignment, we “see” it as a whole and suddenly we score. That changed assignment, option at the line of scrimmage if you will, produces the tingle - Touchdown! It was the coach’s job to find that moment and seize it. We see those moments when we teach advocacy programs, we must seize them and make a difference for the students that have come to us for help.

So what am I trying to say with all of this?

We must master, teach and practice the basic fundamentals every time we have an opportunity to do so. We use drills, short performances and simple exercises to make this happen. Once the student knows enough to be able to get past fear to performance we increase the number of performance specific critiques based on a particular assignment that is tailored to the ability we wish to develop. It can be either broad or narrow, depending upon both time and circumstance. Finally, at some point in the process we must go beyond the nuts and bolts of teaching process to transform the students. Next time I’ll post some thoughts about the way to do that.

Till then, all the best,

Charlie

Charlie's Tingle: the Quest for Advanced Skills and Advanced Teaching

Charlie’s tingle (and the need for it) raises a few general issues about advocacy teaching that deserve our attention. To begin the discussion, or rather to continue what Charlie unlocked, here are some basic concepts.

Advocacy is a performance skill that can be acquired to very variable levels of competency as a result of training, experience, ability to self-critique, and ‘born with aptitude’. As such a skill it is most readily acquired when the student has enthusiasm and the trainer combines experience with a sound teaching method.

Advocacy skill’s (and parallel skills such as interviewing, negotiation, writing) requirement for trainers with real experience sets it apart from the ‘black letter’ and even the ‘procedural’ subjects of a law school because those subjects can be taught by bright people with no ‘real practising law’ background.

Sadly there is little profession and community recognition that advocacy is a skill that can always improve, that always rewards reflective practice. It is as though the bar for competency is set at the ‘it’s ok’ level. Famous advocates are likely to be seen as just ‘born with the gift’, rather than as people who took that gift and worked hard and long to nurture and develop it. Contrast this state of affairs with the attention that is given to the ‘maturing and development’ of other performers and creators (such as singers, dancers, artists, poets, playwrights, novelists , celebrity cooks, etc.)

In this environment advocacy teachers fall into two groups: the full time teachers (such as the three co-ordinators of this blog, and Mark Caldwell of NITA who writes for this blog) and those who add occasional teaching to their already busy professional lives as judges, prosecutors, private attorneys. What both these groups share is an enthusiasm, indeed a passion, for passing on their skills to those who want to learn. These ‘would be’ advocates include law students with a dream of advocacy success, lawyers who now know from practice experience that they need to acquire basic advocacy skills, and students and lawyers who are required (be that by course requirements or employers) to gain some insight into basic advocacy. Of these three groups the first two are naturally motivated and the last, once fear is overcome, are usually surprised at the fun to be had.

Teaching and learning fundamentals require repetition, lots of it. The repetition is of the explaining, the doing, and the critique. That activity (which could become boring, even soul destroying) is made exciting because of the dynamic that reflects teacher passion and student motivation. There are similarities with first steps in reading and numeracy: there are no short cuts, practice makes perfect, some learn quicker than others.

As a method for teaching and learning the NITA approach works well because it combines an incremental, repetitive learning process with the opportunity for teachers to demonstrate their skills, be that by demonstration or the set piece exposition. That is, it is fuelled by the enthusiasm of everyone who is involved. It immediately rewards everyone and that sustains the enthusiasm. An added attraction of the NITA method is that it is easy to teach to ‘would be’ teachers. For further analysis of the attributes of teachers see the articles on this blog by Mark Caldwell.

The end of advocacy courses (be they NITA intensives, or semester units) are often marked by a high level of genuine warmth. Course evaluations are likely to be strongly positive. But what becomes of that skill level six months, one year and more later? A skill not used is a skill that withers. A skill that is countermanded by supervisors or judges is locked away and forgotten. If there is any data on the resilience of the basic skills that we teach, and/or on the extent of self-critique by practising advocates, then we need to know about it on this blog.

I confess to a strong sense of failure over the long term. Just once I was confronted in court by a young advocate who had been very promising when I last saw him in class two or three years before. His mistakes were so basic and so numerous that my colleague had to remind me that my first priority was to win the case and that I could ‘retrain’ my opponent only after we had defeated him and his client. Of course, such ad hoc, anecdotal instances do not make an argument. Somewhat stronger, and so more worrying, are the couple of hundred court reports that I receive each year from my students. Consistently, semester after semester, these students report that competent advocacy (as measured by OK technique on direct, cross, objections and address) is never more than 20% of all advocates observed. I am reflecting an across Australia perspective, a nation where well-structured basic advocacy training following the NITA model has been readily available for over 20 years.

The general acceptance of “it’s OK if it seems OK” on the part of the profession and the wider community is cause and effect of the malaise. If more professionals saw the benefit in further skill training then the level would rise, if only because they would win more cases at the expense of those who stayed in the rut until competition forced them too into skill improvement. Meanwhile advocates are adept at passing the buck for their errors. The community is quick to look for surgeon/physician error but very slow to blame bad advocacy for litigation results. To claim, ‘the patient would have died anyway’ is not as acceptable as ,’the client was probably guilty/ the police didn't do their job/ the witness stuffed up’.

Charlie’s tingle – its what, its when, and with whom – illustrates a rather basic, but not much uttered, aspect of advocacy teaching, namely that improving skill beyond the basic requires a ‘coaching and mentoring’ approach. This is not the classic NITA method. It is ‘post-NITA’. Its essential elements are that the student’s respect for the coach is derived from the student’s objective knowledge of their limitations and the capacity of the student working with the coach to go further. Read Charlie’s post again and the unwritten words are ‘mutual respect for professionalism’.

As advocacy teachers, wherever we are, we need to identify and share some new skills to enthuse practising advocates and the exceptional students to engage with further training. This is a matter of both ‘how we engage with the student’ and ‘what skills are to be developed’. An example of both may be seen in Jeanne Jourdan’s comment to my post on direct examination. Perhaps we need to look carefully at the approaches followed by the great coaches – be they in the arts or sport (all those being performance skills).

We all need Charlie’s tingle – it’s that warm and fuzzy, that body chemical, which sustains enthusiasm to teach. But as our profession and the law schools underrate advocacy skills it is our responsibility to develop new courses that are truly advanced – not only in skill content but also in teaching method. We’ve got our work cut out and I can feel a tingle coming on.

Hugh Selby ©
January, 2011.

Reaching for the Tingle....

Dear Friends:

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

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

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

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

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

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

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

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

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

Enjoy!

Charlie

Becoming an Advocacy Teacher

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

THOUGHTS ON BECOMING AN ADVOCACY TEACHER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Improving Class Performance with Technology

I tried an experiment this summer with my trial advocacy course. I got rid of my weekly lecture and replaced it with an assignment to watch an on-line lecture. I described my plan to do it and the structure I used in an earlier post. A few weeks later, I reported (here)on the success I'd experienced with this particular teaching method. I happened to use the materials available on the Stetson Advocacy Resource Center site, because they are already tied in to the advocacy book I use, but I believe the process would work equally well with self-produced lectures, demonstrations, podcasts and the like.

I also added a rigorous self-video-review element to the course. We recorded every graded advocacy session on SD cards, and the students were instructed to watch the recordings and evaluate themselves according to the evaluation criteria for the exercise and a video review worksheet I created (by the way, please e-mail me if you'd like a copy of the video review worksheet or the evaluation criteria I used for different exercises). Students also had to grade their own performances. In most cases, their video review grade was identical, or nearly so, to the grade I had actually given them on the day of the performance.

This combination was enormously successful for me; my summer advocacy class was the best one I've ever taught, and I almost always have great experiences teaching trial advocacy.

I'm not teaching a trial advocacy class this semester, so I haven't had the chance to put these principles to the test again to see how valid they are. But one of my colleagues, Mike Carr, an adjunct professor at SIU and an assistant U.S. attorney, has used the very same methods in his fall trial advocacy class at SIU. We spoke at some length this past week about his experiences, and they are nearly identical to mine. The students show up to class better prepared than we've experienced in the past, they benefit from a class period spent on coaching and mentoring rather than lecturing, and when it comes time to perform for a grade, their performance is elevated. And the video review seems to help them increase their performance level every week.

Having just read David Thomson's book Lawschool 2.0: Legal Education for a Digital Age, I am convinced that one reason for this method's success is that it taps in to the learning styles and needs of the Millenial Generation. They seem to need something to bridge the gap between reading about a skill and practicing it, and they seem to respond especially well to the on-line materials. The video review element, which uses an SD card that plugs right into their laptop computers, also seems to work well for them, in a way that I haven't experienced with video review before. I feel that the technology helps to amplify their learning experience.

I know there are many other techniques besides what I've just described that leverage technology to produce better learning and performance outcomes. If you're using some of these techniques, please take the time to comment about what you're doing, how it works, and why you think it is effective.

Thoughts on a Good Critique

By
Hon. Robert L. McGahey, Jr.


There have been several recent posts (all excellent) about what students expect and deserve from critiques. May I offer some additional thoughts?


A good critique is:

Clear: Students need to understand what needs to be worked on and what they can do to get better. Use simple language and precise demos.

Complete: Be thorough. Make sure you make your whole point. It’s not a good critique if the student hasn’t been given all the necessary information he/she needs to improve.

Concise: Time is precious, whether at a program for lawyers or in a classroom full of students. Remember Caldwell’s Paradigm: Limit your comments to one point, two at the most. Rattling on is usually not helpful. (Mea culpa, mea culpa!)

Consistent: A variation on “stick to the method.” Use the same general structure for critiques whenever possible. This helps not only the student receiving the critique, but also all the others in the room, who are learners, too.

Candid: Maybe the most important. Sugar-coating has no place here. We’re trying to make better lawyers, not a whole bunch of new friends. This doesn’t require us to be nasty (see below), just honest.


A good critique is not:

Copycat: Don’t give everyone the same critique, even if everyone needs help with the same thing. Find a way to vary the message, even if it’s the same message. Also, while it’s OK to steal liberally from your colleagues, don’t just parrot their teaching points (at least without attribution!)

Convoluted: Or, if you prefer, “confusing.” Be direct and to the point. Don’t bounce around within your comments. Don’t be obscure. Don’t start and stop. Remember Mies van der Rohe: “less is more.”

Cold: Everyone has their own style. However, we have to show the students that we care, that we are engaged with what they are doing, that teaching isn’t just something we do to show off how great we are. You don’t have to be over-the-top, but you do have to be dedicated and invested; remember the difference between the chicken and the pig. We can’t be emotionally distant from the students or from the process.

Condescending: Yes, we all have far more experience than most of our students. Yes, many of us have had much professional success. Yes, some of our experiences are frightening, funny, memorable. But that just makes us different, not special – and certainly not better. We are dealing with professionals, or folks that want to be professionals. We need to treat them as such.

Cruel: We’ve all seen a student completely broken by an unfeeling critique. It’s a dreadful experience – and sometimes it happens because of nothing more than a careless word or tone of voice. We also all remember that Kingsfield-like professor in law school who thought that psychological abuse was a necessary component of teaching lawyers. Again, we don’t have to sweet talk everyone, but we must remember the power of words and the trust our students put in us and act accordingly. Lawyers and would-be lawyers have big egos – but those egos can be fragile.

**********

It’s very difficult being told that you need to improve something you think you already do well. It’s even more difficult trying to learn how to do something you don’t know how to do but want to do well. When the critique of your performance comes from someone you respect and trust, you can learn and get better. As teachers we need to show our students that we are people who can be respected and trusted – and believed. After all, persuasion is ultimately about credibility. As teachers we need to remember that every time we open our mouths and say: “Ms. Smith, I’d like to talk to you about……”

Critiques - How and When to use Praise

Mark Caldwell's recent post about what we owe our students brings us full circle back to one of my posts from a few weeks ago (available here). In recounting a recent advocacy course, he mentions that some instructors were substituting praise for critiquing and that the students were disappointed.

This matches my own recent experience, in which my advocacy students in a law school course commented that they wanted more critiques of their performances. This sparked a number of comments from other bloggers and readers about what it means to critique.

I can only speak for myself on this issue, but I will admit that it is sometimes easier to dispense praise than criticism after an advocacy performance. This is particularly true when the performance has been a good one.

I agree with Tom Stewart's insightful comment to my earlier post that our job is to find teachable moments and then help our students learn. This can involve using a praiseworthy performance as a teaching moment by pointing out a technique and discussing why it worked so well under these circumstances.

Most of the time, however, if we work hard enough in evaluating a student, we can find something to help improve them as advocates. This is not always true, but it is almost always true. With good students, we have to work much harder, even if we use a collaborative critiquing method such as those advocated by Charlie Rose in some of his blog postings and presentations.

What I think Mark is talking about here is the substitution of relatively shallow praise for the hard work of digging in and helping a student become better. We have to search for the teachable moment. "Good job, I thought you really made some good points on that cross-examination," doesn't really cut it.

What role should praise play? I think it should be given when it is actually needed. Most of us have worked with students who have experienced tremendous growth during an advocacy course. After days (or in the case of a law school course, weeks) of being critiqued, they deserve praise when they finally turn in that golden performance; it's their just reward. But the rest of the time--unless it's part of one of Tom Stewart's teachable moments--we ought to keep it under wraps and be about the business of helping advocates become better.

What 'We' the Teachers Owe to our Students

Another great post from Mark Caldwell at NITA.

What do we owe our students?

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

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

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

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

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

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

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

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

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

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

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

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

Our Students as Teachers and Critics

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

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

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

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

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

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

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

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

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

Dealing with Pushback

Related to last week's topic of critiquing, I'd like to address the closely related topic of "pushback," when a student disagrees with a critique and actively resists the process. In every CLE-type advocacy course I've taught--especially the shorter courses--the faculty experience pushback. Oftentimes, one or two students seem to present problems for multiple faculty members.

The phenomenon seems to occur much less frequently in a law school environment, where students tend to treat their professors with deference. This is not to say it doesn't occur from time to time, merely that it doesn't occur as often.

I believe there are multiple causes for pushback. Some are related to the student, others to the instructor, and still others to the critiquing method or specific advice being given. Some students, for instance, push back because of the ego threat presented by an advocacy critique. Others may find the critiquing methodology objectionable. Some may disagree with the point the instructor is making, the suggested fix, or the rationale given for it. In some environments, my guess is that the student may question the instructor's qualifications or legitimacy and push back for those reasons. Inevitably there are personality conflicts.

A maxim I try to keep in mind with pushback situations is a saying from Stephen R. Covey: seek first to understand, then to be understood. I think this ties in to some of the comments that Charlie Rose and Tom Stewart made. We have to remember that we are looking for teachable moments, and we also have to assess and treat each student as an individual. My guess is that when students are included in the feedback loop--as in the coaching example Charlie gave--pushback is considerably diminished. I've discovered that in several of the pushback situations I've been involved in, a little bit of understanding can go a long way, as in, "I understand what you're trying to do. Let's work on rephrasing the question to accomplish that." Diplomacy and tact are also important.

Another way to help with pushback--especially in CLE situations--is to have multiple instructors in the room. On more than one occasion, I've felt grateful to have a colleague ride to my rescue, affirm the point I've just made, and tactfully move on to another point. I'd like to think I've done the same for some of my teaching partners as well.

I haven't always managed pushback well. I can think of some times where I wish I'd been smart enough or experienced enough to think of something different that might have made for a better teaching and learning experience.