Trial Advocacy by Distance Learning

Trial Advocacy by Distance Learning, or, Advocacy Adventures in Cyberspace: A Cautionary Tale

Introduction

Last summer, I experimented with teaching a basic trial advocacy class through distance learning. Except for the final trials, all class instruction and interactions between students and the instructor took place using both synchronous and asynchronous distance learning methods. I required the students to return to the law school and try the final trials live and in a courtroom in front of juries; I was not brave enough to try a final trial on Google Hangouts with the participants in four or five different locations.

At the end of the summer, I gave a presentation about my experience at the South Eastern Association of Law Schools (SEALS) annual meeting as part of a panel organized by Suparna Malempati of the John Marshall-Atlanta Law School and moderated by Charlie Rose of the Stetson University College of Law. This blog post both summarizes and expands on that presentation.

It is a cautionary tale. It might even be a tale full of sound and fury, likely told by an idiot, and perhaps signifying nothing. The bottom line, however, is this: if you and your students are prepared to work an order of magnitude harder than you would in a live trial advocacy course, you can use free technology resources to create a meaningful and successful trial advocacy teaching and learning experience. But you will have to work very hard indeed to bridge the gaps created by trying to draw people together in cyberspace.

Video Review Gets a New Lease on Life: Selby and Behan Declaim on the Joys of Acclaim

Part One: A Hugh Selby Retrospective on the Intertwined Histories of Trial Advocacy Teaching and Technology

Remember those good old days: when all advocacy students were keen, highly motivated, and not afraid of hard work; their Herculean learning and practice efforts were supported by a generous supply of public minded lawyers who were not only good litigators but made so much money that they could disappear from their office for hours, even days; and, enthusiastic law students would line up to volunteer to run the cameras, and there was always more than enough rooms for one-on-one video review – in those days of yore video review was the game changer.  It added the visual interaction to the spoken word critique: it doubled the sensory opportunities.

Quick Update on Diagnostic Trials and Acclaim

A couple of days ago, I posted about trying diagnostic trials in my basic trial advocacy course and having the students review their performances with Acclaim software. I'm grateful, by the way, for Mark Caldwell's comment to that blog post about the value of diagnostic trials for setting a performance baseline. Mark is one of the most thoughtful people I know, both professionally and personally, and I value his opinions about how to improve teaching. He's influenced a lot of advocacy teachers during his time at NITA.

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.

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.

Video Review and Self-Evaluation

I just finished reading 42 video review self-evaluation memos from my trial advocacy students, and I thought I'd write a quick note in praise of video review. This is only my second semester using it as an integral part of the course; for several years, I rejected video review as being a labor-and-time intensive process in which the results did not justify the effort. After teaching at a NITA course with newer recording and playback technology, I decided that I might be able to adapt video review to meet the needs of my class and the manpower constraints I have. I have to say, I'm delighted with the results so far.

In my class, the students record every advocacy exercise on an SD card. Each student must purchase and provide their own SD card for the course. We provide the camera. Most laptops have an SD card slot, and for those few students who don't have one, we have SD card readers on the computers in the law school computer center. The whole set-up is very inexpensive. We have a mid-range camera that costs about $250. The cards themselves are between $10 and $20, depending on size. Each card is large enough to hold every performance during a semester. I've found the SD technology to be very easy to use. It requires very little support from our IT department, whereas on-line streaming, which I've tried in the past, requires considerable support and IT time.

After a performance, and prior to the next class, the students must review the recording of their performance and turn in a self-evaluation memorandum. This memorandum includes a set of general criteria--voice and inflection, movement, gestures, distracting mannerisms--and also a set of criteria specific to each exercise. For example, one of the criteria in the direct examination exercise is whether the advocate listened to the witness and adjusted the examination accordingly. They also grade themselves using the same grading guide that our faculty use.

My course is structured in such a way that I don't see most student performances. I teach a plenary lecture session each week, and we have labs taught by adjunct faculty. All the performances take place in the labs.

With 42 students in the class, I don't have time to watch videos of all the performances, but I do have time to read all of the student self-evaluation memorandums each week. This helps me stay in tune with what's happening in the labs, but more importantly, it lets me directly witness the growth from the students.

Often, they comment on things that no one has ever critiqued them on, and in surprisingly insightful ways. Today, several students wrote that they could tell from the video that they were not actually listening to their witness, but were rather looking down at the paper and thinking of their next question. They comment on their body movements, gestures, placement, voice control, organization, form of questions. Many of them maintain a "running commentary," comparing this week's performance to last, so I can tell they are tracking their own growth.

It is gratifying, and sometimes revelatory, to see the students develop their self-evaluation skills. If they are going to improve as advocates in practice, they will need to learn how to dispassionately examine and critique their own performances and identify areas for improvement.

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.