Courses Tethering Evidence and Trial Advocacy/Mock Trial

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

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

Advocacy Translates to Higher Grades!!!

S. Rafe Foreman is the Douglas Stripp Dean's Distinguished Professor and Director of Advocacy at the University of Missouri at Kansas City School of Law and a contributor to this blog.

Advocacy Translates to Higher Grades!!!

You heard me correctly. I teach both a doctrinal course (Evidence) as well as skills or clinical type courses (Trial Advocacy). I am still stinging from the EATS conference where one of my dear colleagues reported that her evidence professor at her law school reported to their faculty that skills courses have ZERO benefit, value or impact. Thankfully our faculty here at UMKC are more enlightened and supportive of our advocacy efforts. Advocacy and Entrepreneurship are the cornerstones of our law school and our Dean Suni and our faculty have long had the vision of experiential learning since the days the nationally famous Jim W. Jeans taught trial advocacy here.

The Steroid Era of Baseball and Rule 404(b)

From Wes Porter at Golden Gate University School of Law:

Call it exam grading procrastination or alternative scholarship - it's always a fine line.  But I thought [our blog audience] might have an interest in this piece I wrote for MLB Reports re: voting on this year's class for the baseball hall of fame.  We analogized to preliminary determinations and Rule 404(b) to advise the 537 baseball writers voting on the HOF on what level of proof (or mere suspicion) they could consider re: cheating and use of performance-enhancing drugs (PEDs), or not.

http://mlbreports.com/2012/12/08/bbhoflaw/

--Wes Porter

Day 2: EATS 2012

It is a beautiful afternoon in Gulfport.  Day two of the 2012 Educating Advocates conference is nearly over, and what a great day it has been.  This is the premier advocacy teaching conference in the country for a reason: advocacy teaching seems to attract some of the most interesting and creative people you'll ever meet.  I always find this conference energizing, and I'm grateful for the opportunity to attend and participate.  I leave with new ideas for improving my classes, eager for the chance to try new things with my students.

As I write this, Joshua Karton, the high priest/shaman of teaching advocates to become human beings, is working his magic with this year's group of new attendees.  In another room, a group of conference veterans has just finished identifying a number of common advocacy teaching problems (and suggested solutions) that will become problem-solving vignettes for the entire conference tomorrow.

A few highlights from today's presentations.

1.  Trial Competitions.  The morning began with an all-star panel on the topic of Eddie Ohlbaum's Model Rules of Conduct for Mock Trial Competitions (MRMT).  The panel consisted of Bobbi Flowers (Stetson), Eddie Ohlbaum (Temple), Jay Leach (McGeorge), Lee Coppock (Stetson) and Dave Erickson (Chicago-Kent).  All of the panelists have coached championship teams and thus brought a tremendous amount of credibility to the discussion.  This was not, in other words, a collection of perennial losers grousing about the general unfairness of life (I offered to moderate such a panel, but Charlie felt the credibility of his conference, and perhaps his law school, would suffer if I did so, and so he rather sensibly declined; also, Hugh and I had already participated in panels, and the other person we would have brought on the panel could not get funding to attend the conference).  All of the panelists coach teams to win ethically and have experienced considerable success doing so.  And all of them have seen the good, the bad, and the ugly in trial competitions.

The MRMT, which have been the subject of several blog entries and comments in the past (available here and here), were used in a number of competitions this past year (I am going to ask Eddie's permission to post these rules in the Documentary Resources page on this blog).  The panel reported on the rules and led a lively discussion of cheating, whether the rules are necessary, what other types of rules might work, the role of competition committees and protests, and other similar topics.

Eddie memorably summed up the need  for a 30-page code: "We have 30 pages of rules because there are at least 60 pages of ways to cheat at a trial competition."  Eddie identified a laundry list of ways to cheat in a Powerpoint presentation.  I will not post it here because of the possibility that it contains methods that some villainous coaches or nefarious students may not have thought of; there is no sense handing ammunition to an enemy.

To say that this was a lively discussion would be to mingle cliche with understatement.  The panel and the audience were fully engaged, with all sides of the issues (other than the pro-cheating crowd; no one ever defended that position) zealously advocated and debated.  I think it is fair to sum up the session as follows: (1) we all agree there is a problem with cheating and unethical behavior going unpunished or even rewarded at trial competitions; (2) there are a variety of approaches to solving the problem, including better competition files,  the MRMT, positive incentives, negative incentives, naming and shaming cheaters, competition bans for cheaters, stronger competition protest committees and effective protest procedures, and the like; (3) in practice, the MRMT have worked remarkably well and have been fine-tuned to reflect the experiences and feedback from the competitions; (4) other approaches, especially better case files such as the one used in South Texas's competition this year, have also worked; and (5) the increased attention to this issue is making a difference.

2.  Technology in Advocacy Teaching.  The second panel of the conference devoted to this topic, this one was moderated by Hugh Selby (Australian National University) and included Tom Stewart (St. Louis University), Lou Fasulo (Pace) and the Honorable Robert McGahey (Denver judiciary, University of Denver Sturm College of Law).  Tom Stewart began with a presentation about teaching evidence using a law firm model and treating the students as associates in his firm (with Tom as senior partner, of course) rather than the traditional student-professor relationship.  Tom has obtained a fellowship to design and teach this course using an experimental classroom at St. Louis University.  The classroom is designed to facilitate a different model of teaching and includes some absolutely amazing technology and equipment.  The heart of the course, though, is Tom's course design, which is truly innovative and about which I am sure we will hear more in future blog posts from Tom.

Lou discussed innovative uses of technology at Pace.  The first was permitting students to record their best performances on SD cards, with those performances graded.  In other words, the student could refine, retape, record and redo the assignment until satisfied with their performance, in much the same way students are permitted (and encouraged) to rewrite papers.  This best performance would then be graded.  This is a different model than the typical advocacy model, which grades a particular performance at a set time, regardless of whether that is the student's best work.  Taking advantage of some new video equipment at the school, Lou now gives his students the opportunity to conduct live, real-time critiques of their peers in the courtroom.  The courtroom performance is fed to a monitor in the jury room.  As the advocate in the courtroom is performing, Lou leads his students in a critique of the performance.  They cannot be seen or heard by the advocate in the courtroom.  Lou also has begun encouraging his far-flung student body to practice their advocacy performances with each other outside the courtroom through the use of Skype, Google Plus, and other technologies.

Bob McGahey gave a judicial perspective on technology and exhibits in the courtroom.  Like Michelle Joiner in yesterday's panel, he emphasized the importance of the fundamentals, not only to cover for technology failures, but also to ensure the best and most effective use of technology.

3.  Exhibit View.  There's a new trial software suite, Exhibit View, that includes a traditional PC software suite as well as an IPad app.  Bill Roach of exhibit view gave a presentation on the software.  Bill is going to write a blog post on the software (and his views of the conference) in the next few days, so I will say only that this looks like a great piece of software.  I'm going to obtain it, use it and teach it to my students.  It's intuitive, easy and affordable.  The company's website is www.exhibitview.net.  Visit the site; I'm confident you'll be impressed with the software.  I'm particularly excited about the IPad app.

Until tomorrow, all the best from Florida!

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

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

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

The Idea

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

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

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

The Feedback

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

The Questions

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

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

Our Best Answers

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

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

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

--Wes Porter

Case Analysis and Case Map Software--Request for Information

I'm sitting in the lobby of a hotel in San Francisco, where I am attending the AALS Annual Meeting. It's been a good meeting so far; I've attended some thought-provoking panel discussions. More importantly, I've been able to spend time with valued friends and colleagues, talking about things that matter.

By the way, the Golden Gate University Advocacy and Skills Reception, hosted by Wes Porter and Bernie Segal, was a tremendous success. For those of you who supported Wes and Bernie by attending it, allow me to thank you on their behalf.

I also spent some time wandering through the exhibit hall at the meeting. I was intrigued by the Lexis case map software. I've personally never used it, but I did read about it in David Thomson's book Law School 2.0: Legal Education for a Digital Age.

It seems to me that the software might be quite useful for helping students conduct case analysis in a trial advocacy class or in preparation for a mock trial. The software keeps track of information, organizes it by issue, and links it to other related exhibits and information. I think that some of our Millenial students, who love anything digital, could benefit from the software.

I plan to learn how to use the software when I get back home to Carbondale.

In the meantime, I'm curious to know whether anyone else has used this software (or anything similar to it, if such software is available) to help teach case analysis and assist students in conducting case analysis. If you've had experiences with it, please share them in the comment section of this blog.

Basically, what I'm trying to decide is whether the time investment to learn the software (and teach its use to students) is worth it. I personally consider case analysis to be one of the most important things I teach in an advocacy class. I'm all for improving the process, but if the software is not really amenable to the task, I'd like to know about it.

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

Folks:

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

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

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

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

Enjoy!

Charlie

View from the Bench: The Missing Link

Judge Christina Habas, a trial judge in Denver, Colorado, submitted the following piece. In addition to her work on the bench, Judge Habas teaches for NITA.


THE MISSING LINK

The longer I sit on this bench, watching trial after trial, the more I recognize that there is a critical connection between a lawyer’s ability to tell a cogent story in trial, and the ability of a jury or judge to be persuaded. In advocacy training, therefore, it seems that our primary purpose must be to persuade our students that this is true. More important, it should be our primary purpose to provide our students the “link” between the story of the case, and the evidence they present.

This connection occurs when a student realizes that every question asked, every exhibit used and every statement made must somehow be directed toward providing a factual basis for their story. So, how is this best accomplished?

Just as we must have a destination in mind before we get in our car and go, a lawyer must have a story destination firmly in mind before deciding what evidence to present. Otherwise, the trial becomes nothing but a meaningless, fact-intensive exercise in throwing stacks of facts at the fact finder, hoping they will make sense of them.

Beginning each exercise (direct, cross, exhibits and opening statement) with a clear statement from the student of what this information will be used to argue in closing is an excellent way of providing this missing link. The student should not be allowed to get away with vague platitudes (such as, “I want to prove that the defendant knew what he was doing was wrong”). Instead, the student must be prompted to actually perform a segment of their closing argument, which is based upon this particular evidence (such as, “this defendant knew what he did was wrong, because when he was confronted by the evidence, he ran from the scene and wasn’t arrested for several months. Does a person who has done nothing wrong run and hide? No.”)

It is only if we, as teachers, insist that students give us a clear goal of their examinations that we can effectively determine whether their examination is sufficient to law the foundation for that goal. We cannot gloss over this requirement, or this link in persuasion will remain forever lost to the student, and we would have failed.

Remember the “missing link”.

Today's trial as a learning and teaching tool -Blagojevich Trial 2010

Opening statements in the Rod Blagojevich corruption trial take place tomorrow. Blagovejich is the flamboyant former governor of Illinois, accused of trying to sell Barack Obama's Senate seat. For the uninitiated, the trial will provide a fascinating look at the seedy underbelly of Illinois government, where politics is a blood sport and influence peddling has been elevated to art form.

Beyond that, the trial should be a useful vehicle for teaching trial advocacy. Because of the high-profile nature of the case, it is likely to receive heavy press coverage, including learned commentary from the punditocracy about the advocacy choices of the attorneys for both sides.

Check out this article from the Chicago breaking news service for a preview of the different styles likely to be on display during opening statements tomorrow.

A quote that stood out to me in the article was from Blagojevich's attorney, Sam Adam, Jr.: "The more you try to say things the way you think people want to hear them, the more you get away from what got you there in the first place." One of the hardest things to teach budding young attorneys is to rely on their own voices, and I don't think I've ever seen the point better phrased by anyone else.

I am convinced that integrating discussion about current cases can be a valuable part of teaching either a trial advocacy or an evidence course. Students thrive on making connections between what they are seeing in the courtroom (or reading about, or watching on television), and what is being taught in the classroom. Personal experience as a student, then a teacher, has taught me how important this connection can be.

I took a criminal trial practice class my third year of law school during the O.J. Simpson trial. Our class was taught by two seasoned criminal defense attorneys, who took full advantage of the teaching opportunity posed by the trial. We spent the first ten or fifteen minutes of each class discussing the case. The insights they provided about strategy, tactics, and decisions of counsel were invaluable, and helped me catch a glimpse of just how complex and difficult trial work can be. Until I took that class, I thought the world of appellate cases and advocacy represented the pinnacle of the lawyer's art; after the class was over, I felt differently, and I made my career choices accordingly.

So-I'll be paying close attention to the Blagojevich case. As an Illinois resident, I'm interested to know whether Blagojevich will join George Ryan in the Illinnois Governors' Wing of the Terre Haute Federal Correctional Institute. As a student of the human condition, I'm looking forward to witnessing a drama of potentially Shakespearean dimensions (after all, we have on trial a man with few inhibitions, who has promised to testify in his own defense, and who would not hesitate to drag the President of the United States down with him). And as a teacher of trial advocacy, I plan to be alert to opportunities to enhance my classroom instruction with a dose of real life.

A Parable that Helps Students to Sift Facts in Case Analysis

IN a world where rumour and innuendo flies more quickly, makes more noise, and is often so much more exciting than the facts, our students can be forgiven for not understanding that the facts we use at trial need to be reliable.

The following very short parable helps them to understand, and we teachers to remember, the qualities of the evidence we'd like to lead at trial.

It has the added attraction of fitting into Charlie Rose III's signature approach to memorable advocacy that if it matters, then like him, it will have three parts.

In ancient Greece (469 - 399 BC), Socrates was widely lauded for his wisdom. One day the great philosopher came upon an acquaintance, who ran up to him excitedly and said, "Socrates, do you know what I just heard about one of your students...?

"Wait a moment," Socrates replied. "Before you tell me, I'd like you to pass a little test. It's called the Test of Three."

"Before you talk to me about my student let's take a moment to test what you're going to say. The first test is Truth. Have you made absolutely sure that what you are about to tell me is true?"

"No," the man replied, "actually I just heard about it."

"All right," said Socrates. "So you don't really know if it's true or not. Now let's try the second test, the test of Goodness. Is what you are about to tell me about my student something good?"

"No, on the contrary..."

"So," Socrates continued, "you want to tell me something bad about him even though you're not certain it's true?"

The man shrugged, a little embarrassed.

Socrates continued, "You may still pass though because there is a third test - the filter of Usefulness. Is what you want to tell me about my student going to be useful to me?"

"No, not really..."

"Well," concluded Socrates, "if what you want to tell me is neither True nor Good nor even Useful, why tell it to me at all?"