In an adversarial legal system the quality of advocacy directly affects the outcome, and hence justice. This blog is for everyone -however they serve our legal system - who is committed to improving the teaching of advocacy skills and ethics so that parties and the community are well served by persuasive and ethical advocates.
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Showing posts with label Student-Centered Learning. Show all posts
Showing posts with label Student-Centered Learning. Show all posts
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.
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.
Since posting about dramatic lawyers yesterday, I've received some thought-provoking emails from friends. I thought I'd follow up on the post with some additional thoughts.
First, to those of you who commented favorably on my new status as a centerfold, especially given my age, girth, and so forth: Thank you. It is heartening to know that we centerfolds have supportive networks of friends and family who will be with us throughout the process.
Second, on the subject of drama, my friend and colleague Tom Leggans provided some great insight. Tom is an Assistant United States Attorney and a member of our trial advocacy faculty at SIU School of Law. He is a phenomenal trial lawyer and teacher. Here are Tom's thoughts:
Suparna Malempati is an associate professor of law at Atlanta's John Marshall Law School, where she teaches trial advocacy. This is her first guest piece for our blog, and we hope there are many more to come.
When I began teaching Trial Advocacy a few years ago, I
structured my class in a manner similar to the NITA programs.I began class with a fairly short lecture
(generally 20 minutes) about the day’s topic.I then either demonstrated the technique being taught or showed a video
clip.I engaged the students after the
lecture and demonstration with an exercise.I thought that to be the best manner of organizing the class.I spent hours preparing power point slides
for each lecture, and summoned all my talents of effective presentation.After all, I was a trial attorney.I was able to engage jurors with brilliant
closing arguments that lasted hours.Of
course I could hold the attention of students for a 20-minute lecture.
Three
o’clock on a drowsy afternoon.The quiet
halls of legal power are broken by the crack of the gavel as the judge calls
the case to order.The plaintiff’s
application for an urgent injunction is supported by an extensive affidavit
setting out its concerns.The defendant
has reacted quickly and has an affidavit and outline of argument.
One of the best parts of my job is serving as a faculty advisor to Southern Illinois University School of Law students who work with the Illinois Innocence Project (IIP). The IIP is a unique organization that involves all three public law schools in Illinois, as well as undergraduate and graduate students at the University of Illinois at Springfield.
Last fall, the IIP was able to help secure the release of Anthony Murray, a man who was wrongfully convicted of first-degree murder in 1998 and served 14 years, 11 months and 3 days of a 45-year sentence (link to stories about his case and release here). Murray did not receive a full exoneration. Rather, after his conviction was dismissed, the state's attorney for Marion County, Illinois, brought charges again but offered Murray the opportunity to plead no contest to 2d degree murder in return for a sentence of time served. Murray chose the certainty of going home to facing trial a third time in a system he no longer fully trusted. (If you read some of the articles in the above link, you'll note that no one in the IIP was satisfied with the offer from the state's attorney, but Murray did not want to risk a third trial in the same county, with the same perjurious witnesses, for the offense.)
Murray spoke to the students at SIU this afternoon. As with all exoneree presentations I've observed, his speech was inspirational, heartfelt, and heart-wrenching.
I'm about to start grading final examinations, but in a last act of procrastination, I decided to write a quick blog post on some random advocacy-related thoughts.
Cameras and Advocacy in a Chinese Courtroom. I found this story on NPR about a Western reporter's visit to a Chinese courtroom. I enjoyed reading it and thought I'd share the link. I found it particularly interesting that courts in Shanghai actually stream cases over the internet for citizens to watch. The description of the informal advocacy style in the courtroom was also intriguing; it reminded me of administrative board hearings I've participated in or presided over.
Cameras in Illinois Courtrooms. Although the People's Republic of China and the State of Illinois are not often compared to each other, it appears we may be a bit behind our brothers and sisters in China on the issue of cameras in the courtroom. Here in Illinois, we're just getting started. Here's a link to an Illinois State Bar Association story on the topic.
Adding Voir Dire to Basic Advocacy Course. I'll be revamping my syllabus for my basic trial advocacy course in a week or so. I've decided to add a voir dire module to the course; in the past, I haven't done it because I thought there wasn't enough time. The jury trial competition that I hosted this past September featured jurors from the community, and we let the jury verdict determine the winner. The student advocates had to conduct voir dire before trial. This experience, about which both Rafe Foreman of UMKC and I have written in the blog (links here and here), convinced me I need to start teaching voir dire in the basic course. I'm interested in any thoughts or tips on the timing and structure of teaching voir dire in a basic advocacy course.
Evidence Class. I had a fun semester in my evidence class this year. This was the first semester my recently-published textbook, Evidence and the Advocate: A Contextual Approach to Learning Evidence (LexisNexis 2012), was available for classroom use. I've been using draft versions of the book as I wrote it for the past couple of years, but having it in final form was a good experience for me, and, I hope, for the students. The approach I take combines cases and legal commentary, problems and courtroom exercises. For example, the last courtroom exercise we did this semester was the direct and cross examination of a forensic odontologist in a murder case. The students were responsible to conduct their own research on forensic odontology as part of their preparation for the exercise. They did a fantastic job presenting the expert, cross-examining the expert, and making, responding to and ruling on objections (I have a student play the role of judge in most exercises). I've been pleasantly surprised at how well they rise to the occasion, figure out what to do largely on their own, and stand and deliver in the courtroom during class. This teaching approach has worked well for me the past couple of years, and I'm already identifying areas for improvement and generating new ideas for the second edition.
This post is from Wes Porter at the Golden Gate University School of Law. These are some great tips to pass along to students.
The link to the original post at the GGU Litigation Center is here.
PROFESSIONALISM ON TRIAL
Rule: Project a serious professional at ALL times in and around the courthouse. Rule of thumb: Assume that the jury is watching you at ALL times while you are in trial- – lunch room, elevators, and street in front of the courthouse.
Rule: Be courteous to courtroom staff and courthouse employees ALWAYS.
Rule: Speak and work quietly at counsel’s table while not in session. Rule of thumb: Assume the courtroom is “miked-up” and judge/jury are listening in on you– be careful what you say and your volume when you say it.
Rule: Be formal & courteous to the court, opposing counsel, and witnesses in trial. For example: “Your honor, may I have a moment?” ”May I resume?” “May Mr. Houston step down from the witness stand?” “May I confer with counsel, Ms. Smith?”
Rule: Expect background noise and distractions – and begin with a loud, clear voice that commands the jury’s (and everyone in the courtroom’s) attention. Bigger issue: Show them not only why you and your case deserve their attention, but why trial attorneys are worth watching – especially you in this case.
Rule: Sit up (and stand up) straight and keep your hands visible. Rule of thumb: Visualize the magazine cover photo of you at trial – don’t slouch back in your chair, don’t lean on anything when standing, and keep your hands out of your pockets.
Rule: Always answer the court’s question first and then offer explanations. For example: “Counsel, was this witness on your list?” “No. May I explain why?”
Rule: Do not show that you are upset or angry (or overly happy) with the judge, witness, or opposing counsel during trial. You think: the jury will know why I’m upset; jury thinks: something most have gone wrong.
Rule: Don’t look at, or talk to, opposing counsel during objections and responses; instead listen intently and argue to the court. If you ignore this: the jury sees children bickering and tunes out (really quickly too!)
Rule: Be reasonable in all dealings with opposing counsel during trial. Rule of thumb: Assume the judge and jury will learn about every exchange you have with opposing counsel and decide who was more reasonable –for example, if they want to use my exhibit, my demonstrative, or my copy of the witness’ statement, go ahead.
Rule: Do not react in front of the jury. All that happens in trial is just as you expected. Most reactions don’t say what you think they do; instead it screams unprofessional.
Rule: Correct factual inaccuracies, misstatements, and misunderstandings. Rule of thumb: As officers of the court, we have a duty to do justice and get it right. Do not capitalize on that which you know is not correct. Correct it - and move on.
This post is courtesy of Mark Caldwell, Senior Director of Education: Specialty Programs for the National Institute for Trial Advocacy.
The Carnegie Report on legal education is generating waves of change throughout the United States as many law schools seek ways to bring practical experience to the doctrinal classes. I am privileged to be working with Professor Roberto Corrada at the University of Denver Sturm College of Law as he brings new ideas to the faculty of law. Over the past year members of the faculty have exchanged ideas through presentations on methods they are employing in their substantive courses.
This spring I attended a presentation by Deborah Zalesne, Professor of Law, & David Nadvorney, Director of the Professional Skills Center, CUNY School of Law. Their presentation, "Rethinking the Syllabus in Core Courses: Dismantling the Hierarchy Between Theory and Skills," related a number of exciting ideas about collaborative teaching. Included in the process they employ for first year students is the use of a highly detailed course syllabus. Many teachers make use of this tool to show direction in their classes. What makes the syllabus employed by Professor Zalense so innovative is how she weaves each day's work with how it relates to the practice of law and what tools the students should be employing as they bring the substantive knowledge learned in class to practice. Professor Zalesne and Director Nadvorney are working on a book that should be released later this year from Carolina Academic Press titled Teaching for Every Student, Integrating Skills and Theory into the Contracts Class . I expect it will be an interesting read for those interested in course design.
I was truly taken by this very creative idea - wishing that my law teachers had done something similar for me all those years ago. As I sat listening to the presentation I had one of those "Cosmic Whacks on the Side of the Head." At NITA we teach through a process that has four parts - Tell the student what our comments will focus upon; Play back the words they used that could be improved upon; Offer a means to "fix" or change their behavior; and give them a reason why changing their behavior would help them be more effective. My epiphany was a connection between providing learning objectives in a syllabus and telling people why we feel it important to include specific skills in a class session. In essence, taking what we do on a focused basis and make it more global.
Recognizing that many of the things we diagnose and fix are universal, why not present them in advance. Students often ask if they may have our notes of their performances. They are seeking a means of memorializing our suggestions for improvement. Some teachers even use a prescription form as a means of sharing their comments. (See the attached form that I sometimes give to my teaching teams at programs). By providing up front, and before student performances, specific learning objectives and reasons we offer added guidance to students, suggest where they focus their performances, help them understand the building block process of teaching skills, and makes the instructor accountable for what is taught. Some might find this a frightening concept while others might welcome the guidance. In either case it makes the process measurable.
Those who miss a class session are now afforded specific information on what they have missed and must now acquire to catch up with the rest of the class. It assists instructors by limiting the universe of what they must diagnose and fix.
The process in no way limits how an instructor must teach. There is still a huge degree of flexibility in terms of working with individual students. It does not suggest how a skill should be taught. It simply lays out a class focus and helps everyone appreciate how the course is designed.
In crafting my Learning Objectives and Reasons for a recent trial skills program - The Rocky Mountain Basic Trial Skills Program - I borrowed liberally from the work of Professor Peter T. Hoffman. His Building Blocks for Advocacy are a great set of learning objectives that any advocacy teacher should read before they offer a trial skills course.
For my current crop of skills courses I am writing detailed learning objectives and goals. I currently have no evidence that anyone reads these documents. I have heard from some members of my teaching teams they find the guidance helpful. I have no comments from program participants.
Before providing my first set of Goals and Reasons to a class I shared the idea and my draft with a number of colleagues. All liked the idea. A number commented to me the document was far too long. My good friend and colleague Terre Rushton suggested I was overly ambitious and that each workshop should only have three or fewer learning objectives. The teacher in me says Terre is right - it is foolish to expect students to take away more than a few points in each class session. My compulsive self says - set the bar high and offer more. Each student may only take away two or three points but those points may be different for each person in class. Give them a broad range and let them take away those points that best fit their needs.
Following is an example, excerpting a portion of a program schedule and then the Learning Objectives and Reasons for the session:
In 2010 Atul Gawande, a Boston based surgeon, published his ‘The Checklist Manifesto: How to get things right” [Henry Holt and Co. LLC, ISBN 978-0-8050-9174-8]. The point of the book is that customised checklists help us all – no matter how experienced and clever – to do the job better.
There’s nothing new about checklists. For lawyers there is much transactional law that lends itself to ‘doing by numbers’, a reality that encourages the profitable use of paralegals.
For advocates too the notion of checklists is also well established. A trial note book is a super checklist, inside of which there are sub checklists and far too much distracting detail. Having sat grudgingly through a number of presentations on the necessity for a trial note book and the need to have it tabbed and colour coded etc. etc. , I did not expect to find a book on checklists interesting, let alone a successful change agent for how and what I teach.
Gawande’s insight is the bleeding obvious (with hindsight), namely that a checklist is only as good as its immediate relevance to the user. Take the weekly shopping list – whether it be the adhoc list of items scribbled on the white board fridge magnet, or that new cell phone app you’ve been playing with that lets you put items against various categories on that shiny, bright little screen. The former probably works better than the latter unless you can readily change those app categories. Why is this so? The app categories are generic and are not the best fit for your shopping preferences. There’s a best fit checklist in your head that reflects both your categories AND where you’ll find them in your supermarket.
For so long as you shop alone and you know what’s missing from your home shelves then your ‘inside the head’ checklist is very efficient. The problem arises when you share the shopping: your ‘assistant’ is not inside your head, doesn’t share your priorities for filling the missing spaces on the shelves, doesn’t tour the supermarket in the same idiosyncratic way that you do, and probably wants to move along some of those shelf items and stock a few items of which you do not approve.
There are ‘would be’ high flyer advocates who share with some aspirant surgeons the misconception that theirs’ is a solitary craft for genius, overlooking that without continuous teamwork nothing notable is achieved. Developing and sustaining that teamwork is a high order application of sharing the shopping journey. The method is to start with the generic (like the app shopping list) and then tailor that checklist to the needs of the team so that it’s there, being easily and helpfully applied, during the preparation and during the performance.
By the way it’s a misconception to believe that such a checklist cuts off the capacity to be creative. To the contrary, with everyone knowing what they are doing, and why, there is the opportunity to search for a better way. And, having found it, the checklist is updated.
As advocacy teachers we can use checklists both for trial preparation and performance sessions. By showing that it works it is more likely (I hope) that our students will then carry over the habit into their practice. My present plan is to create a checklist backbone, to which students (and other teachers) can add such ‘reinforcing’ and finishing detail as meets their changing needs.
Paying false homage to my blog colleague Charlie Rose’s commitment to a rule of three I introduce the substantive part of this article by calling upon the 3A’s ( the advocacy teacher’s response to the 3R’s). We have adversarial, audiences, and anticipation as the three touchstones of our craft. I’ve yet to find a way to properly use this insight but astute readers may find a way and share it in the Comments box.
Within our adversarial system we define a contest within the legal elements of each cause of action or charged offence that is before the court. But that’s not the only foundation concept to which the student must pay attention. There is also, and always, identification of audiences and the respective objective needs and subjective wants of each audience. That this is so is readily seen as this article is being written by the hype around the forthcoming trial of a recent head of the IMF who engaged a hotel staffer who entered his New York hotel suite. Whether what then happened was an outrageous abuse or a consensual fling is for a New York jury to decide. The legal teams for both prosecution and defence are doing their darndest to create atmospherics for the audiences that give their side some advantage in the public space that is the media.
That leaves ‘anticipation’. This is a concept with several implications in the advocacy concept. It is clearly difficult to grasp – the proof of that being the daily performances of too many advocates who clearly don’t have a clue about even one such implication. ‘Anticipation’ requires an advocate to recognise what their competent opponent would do and either prevent it, or minimise the amount of damage that their opponent can do. The problem is that the less than competent advocate lacks the capacity to discern what a competent advocate would do, no matter for which party they act.
‘Anticipation’ also refers to what the good advocate will set up in each of their audiences: a sense of a case that is well prepared, will be well delivered, and which will be persuasive. (There is a third aspect of anticipation to which we will turn later.)
The foundation of elements, atmosphere, and anticipation leads into a checklist of ‘required’ evidence. Both sides must engage in this task: one side to make sure they have it, the other side looking for the bit that is missing, or the bits that are there but are, for one reason or another, compromised. Hence the checklist requires the lawyers to look to the sources of evidence and then objectively evaluate the ‘weight’ that each bit bears. So, early in the piece, there are reasons for advocacy to be taught tethered to an evidence course. How better to understand the critical place of ‘credibility’ as a basic evidence concept than to see in the course of practising the art of cross-examination that a critical mass of mud on the face of the messenger is so very effective to cast doubt on the strength of his or her relevant and admissible message.
Given the sources and their perceived strengths and weaknesses the advocacy student must then consider the interwoven concepts of, ‘What is the most persuasive order in which to present this evidence?’ and, ‘How do I minimise on direct the target size of my witness who will be cross-examined when I finish?’ It’s at this point that the student is applying the guideline, ‘Start with your best, finish with your second best, and wrap the weak stuff in the middle’.
Following this skeletal approach the student should be able to run ‘trigger’ points from her or his checklist that bring to mind the topics of factual material that need to be drawn out from one or other witness in a predetermined, persuasive story.
With the law and fact content settled, a student advocate needs to pay attention to the presentation aspects of both their and their witness’ performances. For the novice this means that the checklist includes how their anxiety is going to be masked. It may include such detail as, ‘Are my feet and that of my witness facing towards the decision maker?’ ‘ Do I and my witness have a half glass of water handy?’ ‘Are we both able to bring our voice speed down to a good court room speed by syncing our toes with our voice speed, and having a note that has ‘SLOW’ written vertically on the page?’ and, ‘Am I now entering that 3D space with my witness to recreate for the audiences in this court room a past experience of the witness that is being retold by us today?’ That amount of detail is only necessary for the newbie. The more experienced, where such preparation is automatic, merely writes: ‘control anx’ to cover for that rare occasion when the automatic deserts them. That’s the beauty of the customised checklist: it’s there when it’s needed.
The checklist may also include a reminder about clothing and artefact such as tattoos and body piercings: doing whatever can be done to keep a prejudice in the audience turned off.
That done there is the checklist point about how and how early to introduce visuals that will entice the audience into a story that they can now ‘see’ as well as listen to. There’ll be a cross link to that evidence topic of ‘more prejudicial than probative’ to remind the advocate who loves gore that some in their audience max out with a ‘low level violence’ rating.
Slipped repeatedly into this sequence will be the message, “Reassess your position. Should you now reinforce, back up, shift focus, or move forward?” That’s the essence of having our students acquire the inner knowledge that all good advocacy is both reactive and pro-active to the immediate environment.
Making or not making objections to questions or assertions by the opponent is another application of the reactive/proactive approach. The common objections lend themselves to a checklist. Introducing that list – for the novice- are two questions: 1. Do I have a good faith basis for this objection? AND 2. Do the tactical benefits (now and for possible appeal) outweigh any tactical downside (such as antagonising a jury)? Once again the ‘objections’ checklist provides a good link with the parallel evidence learning.
By dint of explication and repetition above I hope that it is clear that this article does not endorse generalised checklists of the sort that might be otherwise called templates or precedents. Sadly, but fortuitously for adept advocates, there are plenty of situations where the witnesses have used such generics. Sometimes the advocate just knows that the witness will have followed, for good or ill (and usually with their assessment brain in the ‘off’ position) some inappropriate checklist. It is good to anticipate such a witness because worse than no checklist is the slavish following of the wrong one. The cross examination of such a witness must eschew belittling but leave the other audiences in no doubt as to the lack of witness credibility.
Our students need to know that a checklist is a map for macro items and a reminder of those things that are important to the student at and around the time that the checklist is prepared. Just as effective CV’s change with time so should a useful checklist.
A useful checklist uses topics (just like the agenda for witness examination). It is short (like an opening and a closing). It is easy to find. It will do either or both of: ‘Do this and confirm you have done it’, or, ‘Read this and do it’. It does not include explanation because that is a given before the checklist is prepared. Just as teacher and student find it useful in basic training, so later that student, now an advocate, can make it useful for advocate, witnesses and anyone else on the team.
I can see an advocate walking up the stairs to the court house. The mobile phone is open, they have closed out the non work apps and they are looking at their pre-court checklist. There are many things on their mind. Fortunately the last item is, ‘turn this thing OFF’.
Some readers of this blog might find themselves in a position or situation similar to mine: building a competition trial advocacy program from the ground up. Two years ago, my dean gave me the responsibility of directing our school's mock trial competition teams. I was excited by the opportunity, but remarkably ignorant of the scope of the task ahead of me. Although I had substantial trial experience and had taught trial advocacy for many years, I had never even attended a mock trial competition.
So I am learning how to coach a trial team the hard way, in the unforgiving crucible of a trial competition. It is a painful thing to watch a team lose a round, not because they are untalented, but because of something I overlooked as a coach or did not know enough to prepare them to face at competition. For example, in all my years as a prosecutor and defense attorney, including many cross-examinations of hostile witnesses, I never once faced a witness who had perfect recall on direct examination but total amnesia on cross-examination; but in competition, I learned the hard way that some teams coach their witnesses to act this way. I carry a notebook with me and pay careful attention to what successful, ethical teams are doing. I have learned quite a bit from facing well-prepared teams that do everything right and win while still taking the high road ethically. That's how I want my teams to be, and I learn so much about coaching just by watching these teams perform. I also pay attention to the unscrupulous tactics used by some teams so I can prepare my students to fairly and honorably meet the challenge. I won't name those schools here, but there are a few of them in our region, and I now know enough to give my teams a scouting report that at least lets them know they are about to encounter opponents who will make a mockery of all we've tried to teach our students about professionalism, ethics, collegiality and fair dealing.
On top of my inexperience as a coach our school does not have a strong mock trial tradition. Our appellate moot court teams have traditionally been competitive both on a regional and national level. Students write briefs and make appellate arguments their first year of law school and can try out for the moot court team the fall of their second year (as part of an extremely rigorous advanced appellate advocacy course). The moot court program is well-funded and well-organized; some of our faculty members have coached teams in the same competitions for several years running.
Our trial teams, in contrast, received fewer resources and have faced structural and curricular barriers that prevented them from reaching their potential. There is no first-year trial advocacy experience to compare with the first-year appellate briefs and arguments. Furthermore, the mandatory prerequisites for participating on trial team ensured that for the most part, only students in their final semester of law school would be eligible to compete; students had to take, in lockstep order, evidence (a 2L class), then trial advocacy (a 3L class). Thus, even though my predecessors had talented students on their teams, their lack of experience often proved to be their undoing at competitions, particularly when facing experienced opponents from schools with strong mock trial traditions. Basically, every year the program had to start over from scratch—not a recipe for sustained excellence and success.
With the assistance of a pair of associate deans and the support of my colleagues on the faculty, we've been able to remove the structural and curricular impediments to trial team success. We hold a closing argument competition that is open to first-year students, and students are now able to participate on our mock trial teams beginning in their second year of law school. This coming fall, our trial team will have returning members for the first time in many years. I think this will make a great difference in building the future success of our team.
We held our third annual closing argument competition this past week. The competition serves two primary purposes: (1) to increase enthusiasm for and interest in our trial advocacy program; and (2) to identify talented students to join the trial team.
Here's why I'm excited: The quality of the closing arguments was the best yet, even though the majority of the competitors were first-year students with no trial advocacy training or experience. Case analysis, use of theory and theme, organization, evidentiary inferences, use of jury instructions, eye contact, voice, pacing, use of notes—across the board, competitors demonstrated strong skills in these areas.
I believe their high performance was the direct result of coaching and mentoring by current members of the trial team. We started offering our trial team members as mentors in last spring's competition, and there was a noticeable difference in the performance of students who used mentors last year compared to those who did not. In fact, most of the members of our current team were mentored last year. This year, nearly every competitor requested mentoring and coaching from the current trial team.
I believe this bodes well for the future. We're building a foundation based not just on classroom instruction, but on student learners-turned teachers. The students now have enough experience and skill to start training their successors. The student mentors, all of whom have participated in interschool competitions, know what to demand of their mentees in terms of performance. When our competition cycle starts next year, we will begin at a higher level than years past, and those students will demand even more from next year's crop of mentees. Since the students are the ones who compete, it makes sense that they should take a leadership role in helping to prepare the next generation.
In addition to that, I now have the luxury of former trial team members who live in the area, know what the program expectations are, and are willing to help guide and coach our competition teams. I look forward to working with them in the years ahead to build a successful—and competitive—program.
Building a competitive program from the ground up means taking some hard knocks from the school of experience. It also requires a solid foundation built on student leadership and learners-turned-teachers.
Not long ago, Hugh Selby suggested that one way to encourage guest blogging would be to select a "Topic of the Month" that might help stimulate thought and discussion. With a new law school semester just around the corner, this month's topic is Teaching Advocacy Across the Curriculum.
Many readers of this blog teach trial advocacy courses in law schools, either as full-time or adjunct faculty members. And of that group, many teach additional courses as well. For example, I teach first-year criminal law, evidence, and a military law seminar.
There are many opportunities to help teach students advocacy skills in a traditional "doctrinal" legal course. Successfully doing so requires advance planning and a commitment to creating learning opportunities that go beyond the Paper Chase-type moments where we flay students alive with unanswerable questions using the Socratic method. The rewards, however, are well worth it: students enjoy class more, they understand difficult legal concepts better in the context of making trial and appellate arguments, and they develop an interest in advocacy they might not otherwise have had.
Over the years, I've had wonderful colleagues and mentors who have shown me the possibilities in this method of teaching. When I taught at the Army JAG School, then-Lieutenant Colonels James Garrett and Patricia Ham directed a curricular overhaul of our basic criminal law course for newly minted military attorneys. I became intimately familiar with the process as the project officer assigned to design the plan. Lieutenant Colonel Garrett gave me just one piece of guidance initially: figure out what you want the students to know, and what you want them to be able to do, and then restructure the curriculum according to that. Lieutenant Colonel Ham, his successor (the process took about two years to implement), directed me to use an actual case file as the structure for the course. We called it Anatomy of a Court-Martial, and we tied all substantive instruction to the various phases of a court-martial. For example, a class on pretrial confinement procedures would be tied to an actual pretrial confinement hearing. The course ended with the students trying the case they'd been working on for the previous several weeks.
The revamped course was successful far beyond our initial expectations. For the first time, the students were able to tie the complex doctrines and procedures of a court-martial to an actual case. They understood in context, not just theory, and it improved both their skills and their grasp of the theories.
When I left the military and started teaching at Southern Illinois University School of Law, I found tremendous support for including advocacy teaching in my doctrinal classes. In fact, my dean and mentor, Peter Alexander, had been doing innovative things in this area for years. He'll be writing a post this month on the mini-trials based on children's fairy tales that he integrates into his evidence class.
So--what are some things I do? When we begin a new case in my first-year criminal law class, the student I call on must give an opening statement for the prosecution, beginning with the words, "ladies and gentlemen of the jury." I then call on another student to give an opening statement for the defense. Only then do we begin a more traditional discussion of the case.
In my evidence class, every rule and concept includes an application exercise in which the students perform a courtroom task appropriate to that rule of evidence. They draft jury instructions, argue motions, conduct examinations and make objections. I have students play the roles of counsel and the judge, and the entire class serves as a court of appeals. This approach has worked well for me, and it forms the underlying structure of my forthcoming evidence textbook, Evidence and the Advocate: A Contextual Approach to Learning Evidence, which will be published by Lexis later this year.
I firmly believe that integrating advocacy training in a doctrinal class confers a great benefit on the students.
So--this is a guest-blogging topic for the month. If you do similar things, please blog about them. If you disagree with the approach, write a blog post and let us know.
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.
Wes Porter, a professor at Golden Gate University School of Law, was inspired by Judge Tina Habas's recentView from the Bench: The Missing Link blog post. His thoughtful and responsive post follows:
I printed out Judge Habas's post for my Litigation Center bulletin board immediately.
Judge Habas has identified both a universal goal in modern legal education and a critical distinction between advocacy/skills courses and doctrinal courses. The universal goal is, the component parts should always link to the overall learning objectives of the substantive subject matter. For instance, in a doctrinal course like evidence, students in my class own a "pedagogical GPS" - that is, they can stop me at any point and ask “where are we?” They own the right to ask where (or how) a specific lecture topic, hypothetical problem or even a tangential classroom discussion fits into the "big picture." This idea is not mine. Many educators believe (and write) that learning must always relate the parts to the whole. Law students do begin to take ownership of their GPS the very first time the professor responds appropriately and takes 2 minutes to relate the immediate topic to the larger learning objectives of the course.
The critical distinction with advocacy/skills instruction is, the tables are turned. We, as skills instructors, must demand the connection (the "link" as Judge Habas writes) between the many advocacy exercises and mock trial performances and the overall story, case theory and theme. Without knowing, we do it all the time. We ask, "why are you asking that question?" or "stop right there, what will you say in summation about this line of inquiry?" But just as often, as Judge Habas suggests, we can run the risk of "gloss[ing] over this requirement."
I offer two simple ways to facilitate the constant connection, and make known our expectation of this running link, between the “parts” of trial and the “whole” – a persuasive story, theory and theme.
First, instead of (or in addition to) "scripts" for witness examinations and jury addresses, I require brief, bullet-point “goals” from students. These goals are distributed to the observing students during the performance. My students expect that the instructor will stop the performance and ask our performing students and/or observing students to relate a specific examination question or jury argument to one of the pre-identified, bullet-point goals. It becomes a group expectation that all are listening, thinking and voicing for the link.
Early in the semester, I front my expectation of the “running link” through a cross examination lecture. I demonstrate a cross exam of a student with my bullet-point goal displayed on a large screen behind the witness as I ask questions “linked” (and intentionally not linked) to that goal. I also ask observing students to then identify the bullet-point goal in good student demonstrations.
Second, after nearly all witness examination exercises, I regularly require an observing student (not previously selected) to deliver the corresponding portion of the closing argument. The follow-on exercise can be quick and serves several purposes. Primarily, the observing students listen to the performance and think about it in terms of the relational analysis Judge Habas describes. Even better, when the corresponding closing(s) from (an) observing student(s) fall(s) short, the instructor need only ask the group, why? Was it the fault of the performing student?: lack of an overall goal? the witness examination was not clearly linked to that goal? Or was it the fault of the observing student?: the failure to listen? failure to understand the overall goal? failure to understand the examination? The group observations and discussion will surprise you. In a few extra minutes, the group, as opposed to the instructor alone, will regulate and access the “link” between the trial exercise and the overall goal to persuade a trier of fact.
