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.
