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.

Our target should be the students, not law schools

When Charlie Rose writes about the intertwining of law theory and practise (see here, this blog 1 April 2013), when earnest legal education reformers sign off on lengthy reports that bewail the gap between casebook law classes and the real world, when law firm practice managers complain that their new graduates are bright but useless, they are preaching to the converted and no one else.

There’s no mass law student movement clamouring by petition, or by social media for a more practical legal education.  That’s hardly surprising because so many law schools don’t do anything to show that practise for practice matters.  Moreover, out in that real world of practice, poor problem definition, bad advocacy, inept negotiation, and drafting by precedent- not -understanding are the daily fare.

Courtroom Advocacy for Beginners:shaping an online approach

There are various reasons for more and better use of online resources in our advocacy training.  For example, lack of teaching space, shortage of sufficiently experienced trainers, students who want to attend but can't because of work, timetable, and home task clashes, along with teaching and learning efficiencies such as recording one person explain a concept well, and offering mixed learning modes (eg. reading and listening).

Stetson's online Advocacy Resources Centre ( ARC) offers a useful collection of recorded presentations and interviews about various aspects of our craft.  If you haven't yet used the ARC then click on the link to the right of this posting. You are bound to find items that you'll want your students to see, reflect upon, talk about, and enact.

Googling 'advocacy' + training brings up a very mixed bag of materials.  For example, Charlie Rose's recent clips ( shared with you on this blog), along with Wes Porter's, present material with an informed awareness of what advocacy students need to master.  On the other hand there are also clips, often thankfully very short, that are cringe inducing.

Hopefully most viewers will not find the following three clips 'cringe inducing'. They represent an experiment ,on a nil budget, to present the principles of beginner advocacy in a way that the beginner could follow, stop and start and replay, try out something, and complete with more awareness than they started with.

Here is an explanation of some of the 'features', included to help those who decide to make video clips avoid some of our errors and benefit from whatever strengths are found:-

1.  The narrator is never seen.  This is in sharp contrast to Charlie's style.  The choice was made because we want the audience to listen carefully to the narration while viewing the messages (text screens and court room shots);
2.  Whiteboard 'case analysis' shots are deliberately visible to the audience during samples of direct and cross of Jack. This is to encourage reinforcement.
3.  There are obvious mistakes in what the student advocate does. Those have been left because too many people think this skill is easily acquired.  We know better.
4.  There is no example of either the opening address or closing.  There should be, along with on screen annotations that comment on strengths and weaknesses;
5. Most screen text shots contain more text than is recommended.  This was a trade off: was the viewer to be encouraged to mostly listen or mostly look?  We opted for 'mostly listen' (but see also point 1 above).
6.  At the end of each video there should be a short summary of what has been done.
7.  There should be more 'You do it' points throughout  - where the user is told by the narrator,
'Now, try this....'.  For example, 'Set up your teaching room as a court room.  Move through the roles of lawyer, witness and decision maker.  The witness is to tell the Jack and Jill story three times with only this difference: look at their lawyer; look towards the decision maker; look down at the witness table.  Comment on how you see the witness's position affecting their credibility'.
8. Despite writing the script and predetermining shots we still found, in the editing phase, that we needed more visual material AND more narration.
9. The time for editing is an 'n' multiple of the writing and shooting time, where 'n' is a larger number than your patience.

Please do have your students and colleagues try out the videos.  Developing a good online teaching advocacy methodology is a challenge that we must meet.

This first of the three videos is about court room position, case components and case analysis:

This second of the three videos is about opening, closing, and direct:

And, this third of the three videos is about direct, cross, and objections:

Hugh Selby (c)  February 2013.

Storytelling Again: A Great Storytelling Example to Share with Students

I've enjoyed reading what Charlie Rose has recently posted about the central role of storytelling at trial. If you haven't taken a look at those posts yet, links to them are available here, here, here and here.  Also, a few weeks ago I posted an article on storytelling from Psychology Today that provides additional insights.

It's fair to say that storytelling is important. I think it's also fair to say that it's one thing to recognize the importance of telling a good story, another thing to figure out what makes for a good story, and yet another to figure out how to tell one. Some of my students are natural storytellers who figure out the secret fairly easily, but others struggle with it.

A few nights ago, I forwarded a couple of Charlie's blog posts to my trial team members, who are working on opening statements and closing arguments in preparation for an upcoming competition. I got a couple of emails in response, essentially stating, "Well, this is great, Professor, and I agree with it, but where do I go from here? I want to put a good story together, but how should I do it?"

I didn't answer the emails for a day or two, but at two a.m. a night or two later, I found part of my answer while watching an episode of Breaking Bad on Netflix. (By the way, Breaking Bad may be the best television series I've ever watched. I watched four seasons' worth of shows in about two weeks over the holiday break. I couldn't stop!)  Season Three, Episode 12, Half Measures, has an absolutely outstanding story in it. A character named Mike--a security man, "fix it guy," and assassin for a drug king-pin--tells the story to Walter White, the protagonist of Breaking Bad.  I watched the story a couple of times, and I realized it could be used as a great teaching tool to help students see a good story, figure out why it was such a great story, and identify principles they could integrate into their own storytelling.

So, here are a couple of Youtube clips with the story. The first is of the actual episode itself, and the second is a fan animation with the soundtrack. I included the fan animation because I liked it.

(here's the link to the clip in case you are getting this blog post via email: http://www.youtube.com/watch?v=n3u-6UFLubI)

(here's the link to the second clip: http://www.youtube.com/watch?v=CUuHdACg83E)

I gave the students an email assignment, a copy of which is excerpted below, and waited for their responses. Their responses were quite insightful. They rewrote their openings and closings in light of the principles they gathered from watching the clips and reading the blog posts I sent them. I think seeing and listening to a good story helped them pull together what Charlie and the author of the Psychology Today article were talking about.

Here is a copy of the email I sent them:

If you have Netflix or Amazon Prime, I'd like you to watch a segment of Breaking Bad, Season 3, Episode 12, starting at the 21:50 mark. There's a story told in this segment, about 5 minutes long, that is fantastic. I want you to watch and listen to this story, paying close attention to the facts and details that make the story work.  

Write a brief reflective paragraph about the story. Tell my why it works. Identify key details that help you remember the story. I know, for instance, there's one detail of this story that I won't soon forget. Tell me what you learned about storytelling from watching this segment and how you will use it to improve your own opening or closing.

After you've held your practice sessions with each other--whether live or via visual streaming media--I'd like each individual trial team member to send me a brief e-mail report of your practice sessions this week. At this point, I am much more concerned with substance than style. What works in your stories? What needs improvement?

Here's what I need your report to contain:

1) For your own opening or closing:

--What went well?

--What needs to be improved?

--How well did you tell the story? What holes did you leave in the story? What felt awkward or out of sync in the story.

2) For each of your teammate's openings or closings.

--What went  well? Was there a moment in the story where you felt as if you were actually there? And if so, what was that moment? How well did your teammate sustain that moment?

--What needs to be improved, and why?

--What was the worst moment of the opening and closing, and why was it so bad? 

For whatever it's worth, our practice sessions this past week were the best I've ever had with a team at this point in the competition preparation process.  Focusing on storytelling--and having an outstanding example to use as a starting point--makes a tremendous difference.

TECHNOLOGY, ADVOCACY DRILLS & ACHIEVING PROFICIENCY

With the upcoming Educating Advocates conference's focus on using technology to teach advocacy (here), Professor Wes Porter from Golden Gate University School of Law offers the YouTube clip below about how he uses two 5-minute drills to encourage student proficiency in specific advocacy skills.

By now, most of you have likely heard of Salman Khan and his beyond innovative Khan Academyhttp://www.khanacademy.org/.  Khan burst onto the scene in 2011 after he delivered this TED talk (here), when he encouraged educators to "use video to reinvent education."  Khan's revolutionary premise involves a simple two-step process:

·        first, the professor videotapes lectures to allow students to view (and review) the material on their own time; and

·        second, the student must then demonstrate proficiency in a topic before advancing to the next topic.

The Khan Academy philosophy can apply to our work as advocacy instructors.  We too created short videos to teach defined skills in trial advocacy that students can view and review on their own time.  We also designed 5-minute, advocacy drills that students administer themselves and perform (and re-perform) until they achieve proficiency.  The video clip below explains and demonstrates our 5-minute drills designed to familiarize students with the skills of impeachment by prior inconsistent statements and refreshing recollection. 

[Alternatively, you can access the clip through this link.]
We have found that, through the use of short, accessible videos combined with proficiency drills like those discussed in the above clip, students are better able to learn and internalize advocacy skills. 

In Praise of Simple, Direct, Factual Questions

While browsing through the blogosphere this morning, I encountered a post in praise of Brian Lamb's questioning style on the C-SPAN Booknotes program. Brian Lamb was a founder of C-SPAN and an interviewer of some renown.

I thought I'd share a link to the post (available here). It offers some valuable insights on asking questions, noting that Lamb was very good at drawing information from people by asking direct questions about simple facts.

In the comments to the blog post, someone provided a link to an actual interview done by Lamb (available here) in which his interviewing qualities are on display. As an advocacy instructor, I often emphasize to students that in a well-constructed direct examination, the witness takes center stage and the advocate merges into the background. I was impressed by Brian Lamb's ability to do this in the interview. In the first few minutes of this interview, there's a great story about the time Norman Mailer stabbed his wife nearly to death at a party. That alone is worth a listen!

So--enjoy the blog post and the interview. It's hard to find examples of good questioning techniques on television or in movies.

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.

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

Using Movie Clips to Improve Direct Examination

I'd like to follow up on Hugh Selby's excellent post on bringing a 3-D element to direct examination.

The artificial conventions of direct examination can serve as a barrier to prevent advocates from bringing a story to life through a witness. Constrained by the form of questions, hamstrung by the perceived need to "get facts in" through a witness and frightened by the possibility of drawing objections from opposing counsel, many advocates fail to develop the narrative richness and color that their witnesses might be able to provide them. After all, the witnesses generally have a tremendous advantage over everyone else in the courtroom--they've been there and experienced the events about which they are testifying first-hand. Instead of telling stories through witnesses and bringing the fact-finder to the scene, we often use witnesses simply to recite boring lists of events and facts.

This phenomenon is, of course, not limited to trial advocacy. Many years ago, I became friends with Leonard Bishop, a novelist and teacher who lived in Manhattan, Kansas. Leonard used to put on a creative writing workshop at local elementary schools. He always got a laugh from the students with this line: "All your characters are naked! You haven't put any clothing on them!" Then he'd have them rewrite their stories, adding description and color to the plot line.

It's difficult to get student advocates to bring elements of color and description into their direct examinations. I believe this is because case files are two-dimensional. Student witnesses are limited to what is on the printed page, and because they haven't actually seen or experienced what their "character" has, they have a difficult time bringing their witnesses to life.

To help solve this problem, I use movie clips. I try to make the exercise as realistic as possible by ensuring that only the witness is able to view the clip. The advocate has to interview the witness in order to obtain the necessary information for the examination. Often, I'll set the exercise up so that the advocate has to interview multiple witnesses, decide on the most effective witness order, and then present the story through the witnesses to a jury. At the end of the presentations, everyone--counsel, witnesses and jurors--watch the clip together, and we talk about whether the advocate succeeded in bringing the jury to the scene and making everything come alive.

I often select a clip from the TV mini-series Lonesome Dove, primarily because it is set in the 19th-Century Old West. The time, place and setting require the advocate to pay attention to detail. I provide a brief fact sheet for each witness (giving them the year, the name of the town, their name, and some biographical information they would be expected to know). I have also used scenes from other movies for this exercise. It isn't the movie itself that's important; it's the opportunity for a student witness to come as close as possible to experiencing an event in the way an actual witness would.

As a variation on this exercise, I sometimes assign several advocates to interview separate witnesses. They must share this information with a "senior partner," who then decides how to present the information and must also give an opening statement based on the information collected from the advocates. We did this as a demonstration at the NITA Public Service Attorney course a couple of years ago. Student advocates conducted the interviews, and the inimitable Bill Ossmann served as the senior partner and gave the opening statement.

Here are a few rules for the exercise:

1. Don't worry about the cause of action. The purpose is to tell a story, not fill in elements of a crime or tort.

2. Only the witnesses watch the film clip, and they only get to see it once before their interview with counsel.

3. Each witness gets a fact sheet in advance.

4. Counsel are instructed to pay attention to detail and setting in their witness interviews.

5. After the presentation of the story, everyone watches the clip together.

6. We discuss what went well and what could have been improved.

Anxiety : you can mask it with feet, fingers and fun

For those students, or advocates, who know they speak too quickly, a simple use of fingers and toes may be the answer. 'Masking Fear with the 3Fs: Feet, Fingers and Fun' is a short video make at the NITA Public Service Attorney course in July 2010. Some students kindly volunteered their time.

The video is available on the TrialAdvocacy Channel on Youtube. Link to it here

YouTube, Facebook etc - now integral for Teaching and Learning

One of the most fascinating, and frightening things about teaching this generation of students is their ease with technology. They are different in their approach to information gathering. This difference has been discussed in many educational arenas, but I wanted to talk for just a moment about hitting the student where they live - Youtube, facebook and other social sites. Most folks of my generation prefer to think of tweets as a sound that a bird makes. We don't feel a need to be connected 24/7 to everyone in our lives and prefer a different way of communicating. Such is not the case with many of our students. At Stetson I've played with online resources to assist the students in becoming better, and that has worked to some degree. It has not been perfect. I am now working on the 2nd edition of my trial ad book, cutting the final edits. I mean the edits to the videos and podcasts, not the edits to the book, which is long done. Here is an example of the type of stuff I've been working on:




Now this video clip is the result of 3 days of shooting, editing, modifying, converting, powerpointing and just plain hard work - it is also an awful lot of of fun. I've even started a YouTube channel to distribute this stuff. You can view it at www.youtube.com/user/TRIALADVOCACY . Now where did I put that microphone?.....

Saving Time and Improving Performances with On-Line Content

A few posts ago, I wrote about my plan to teach a summer trial advocacy class without lectures of my own, relying instead on the Stetson ARC for lectures. I am now convinced that this is a great way to maximize the use of classroom time. One of the most frustrating aspects of teaching advocacy is time: there is never enough of it. I've felt for a couple of years now that in-class lectures are not the most valuable use of time, but I've continued to use them. It is, after all, what I've always done. I've also found that students seem to be uncomfortable making the leap between what they read in their advocacy book and a courtroom exercise, without some type of lecture or explanation in the middle.

Now I have my students watching the lectures online before they come to class. They show up to class with substantive questions based on the reading and lecture, and they come prepared to work on the assigned advocacy skill. We are able to spend our time in the classroom actually practicing the assigned skill. For the first time, because I haven't had to worry about time for the lecture, I have enough time to help coach several students to make meaningful improvements in class. In turn, when we hold our second meeting of the week--a graded performance session on the same skill we worked on the first session--their performances seem to be remarkably improved.

Although I am using the ARC, it is by no means the only available method for delivering content outside the classroom. A few years ago, one of the adjuncts in our trial program suggested putting together DVDs with supplemental lectures and demonstrations that our students could use. For a school with a low budget, such as ours, this would be a cost-effective way to create content not found on the ARC, or to showcase some of our adjunct faculty and their unique skills in a way that would not be possible otherwise. The DVD was a good idea, and I may still do it. In the meantime, it's nice to be able to use the ARC as a starting point.

I will write more about the results of this summer's class in future posts, but for now I have to say that I'm very excited about what I'm seeing so far.

Adding On-Line Lectures

Summer term here at SIU starts in less than a week, and I'm teaching a basic trial ad course, primarily to rising 3Ls. Because of a scheduling glitch with the registrar's office, the arcane details of which I still don't fully understand, I learned after registration had closed that I was going to have to split the class into two sections and hold class an additional day each week.

I have no adjunct support for the summer term. Furthermore, the notification from the registrar's office came with only a couple of days left before finals Spring semester, so we had to come up with a quick solution that would not inconvenience the students and would maximize resources and available time.

Our associate dean was a tremendous help to me in formulating a solution to our problem that would neither inconvenience the students nor run afoul of university or ABA rules. Rather than meeting in person for that extra day, I will instead offer on-line materials for the extra day. ABA rules permit up to 1/3 of a class to be presented electronically (podcasts, webcasts, computer instruction, etc.) without having to comply with distance learning rules.


So--here's what we're doing. There are four class meetings scheduled each week:

1) A plenary class session on Mondays, with both sections in attendance.

2) A lab on Tuesdays for section 1.

3) A lab on Wednesdays for section 2.

4) The remaining required class session will consist of on-line lectures from the Stetson ARC, as well as a couple of extra assignments and exercises.

What I hope to do is have the students get all lecture material from the ARC. That way, when we meet in our plenary sessions on Monday, I can have maximum time available for drills and critiqued student performances. This will permit the students to practice and improve before their graded performances in the labs on Tuesdays and Wednesdays.

In my case, the on-line stuff from Stetson is a good fit because I use Charlie Rose's book.

I finalized the syllabus together over the weekend, and I think the on-line component of the class should work out well. I'm excited to try it, because I've always found it difficult to balance necessary substantive lectures with the time needed to critique students and give them a meaningful opportunity to improve.

Has anyone else tried something similar? If so, what did you think?