Back in the Saddle Again

Several years ago, when I started this blog along with my good friends Hugh Selby and Charlie Rose, I somewhat contemptuously looked over the landscape of abandoned trial advocacy blogs and resolved that this one would be different. With three of us, I reasoned, there would never be a shortage of material for the blog; in fact, the problem would most likely be having to limit the copious streams of advocacy wisdom that would flow from our computer keyboards. Because we intended the blog to be a community effort, a forum open to everyone in the advocacy teaching community to contribute, we were certain to have a nearly inexhaustible trove of articles and comments. That was the optimistic vision of the blog: a cyberspace version of a perpetual motion writing machine that would practically generate its own content, even as it revolutionized the world of trial advocacy and advocacy teaching.

The vision was, of course, naive. No blog writes itself. And sometimes, life gets in the way of even the best-laid of optimistic plans. In the last several months, the blog has been mostly dormant. We've posted a couple of announcements here and there, but little else. I've occasionally wondered whether this blog was about to join all the abandoned blogs that came before it. The first several years of the blog, it seemed that whenever one or two of us were too busy to write, the other one or two had ideas to share and time to write about them. At the very least, we had time to hound our friends in the advocacy community and beg them for content to post to the blog. Lately, that formula hasn't functioned as it once did. Hugh retired from the legal academy and has been building a practice and participating in other projects. Charlie and I have gotten entangled in the administrative shackles of our respective institutions. In his role as Director of the Center for Excellence in Advocacy, Charlie has been building Stetson's online LLM program, establishing a novel 3-year JD/LLM program, and creating a new comparative advocacy program at Oxford. Along the way, with a very small amount of help from me (I thought of the title), he also wrote and published Mastering Trial Advocacy (by the way, if you're looking for a new advocacy book, I highly recommend MTA; I adopted it this semester and my students love it). As for me, I became the Associate Dean for Academic Affairs at our law school and discovered the time-devouring joys of academic administration. 

A couple of weeks ago, I took  four of my trial team students to White Plains, New York, to participate in a 4-team round-robin jury trial competition hosted by Lou Fasulo and his crew at Pace University School of Law. Kerri Gould wrote a problem especially for the competition, a wonderful case in which an abused woman pours a bucket of acid-based cleaner on her ex-boyfriend's head and severely burns him.  As with all of the competitions in this format we've participated in, the students learned a great deal, had a wonderful time, and interacted with each other in a collegial and professional manner not often experienced in the larger, more traditional competitions. Lou showed me his high-tech control room, in which he can sit with students, watch and listen to live feeds of trials in two courtrooms, and do live critiques of the performances without interrupting the performers.

I felt inspired by my time with Lou. Those of you who know him from EATS know he is a gifted teacher and a mad scientist of advocacy teaching ideas. It's a joy to watch his face light up as he explores new ideas and talks about the things he is doing in his advocacy programs. He is always improving as a teacher because he is always interested in learning how to teach more effectively. In our jury trial competition, he pointed out something very interesting. I'll write more about this in the future, but Lou noticed, while tabulating ballots in our competition, that lay jurors tended to vote much differently in the cases than did the attorney evaluators. The attorney evaluators couldn't get past the merits of the case. The jurors tended to vote for the attorneys they liked better, with little regard for the merits of the case. (We used a system in which there were slightly more lay jurors than attorney evaluators in each case; every voter, lay juror or attorney evaluator, got one ballot and had to pick a winner based on their perception of which team had the superior advocacy performance.) There are some fascinating implications from Lou's observation. Certainly, it makes me wonder why we have attorneys voting on what are ostensibly jury trials in regular competitions: if the attorneys can't bring themselves to look at the case as a juror would, and we teach competitors to try their cases to appeal to those attorneys rather than real jurors, maybe we're teaching all the wrong things in our trial competitions.

For years, my wife has noticed that upon my return from teaching in other advocacy courses (NITA, Stetson, Golden Gate, Washburn, Notre Dame, Air Force JAG School, Army JAG School, Justice Advocacy Africa) or attending advocacy conferences such as EATS, I appear energized and refreshed. Something about the collaboration with gifted colleagues inspires me, makes me feel creative, generates new ideas, reminds me once again of how wonderful it is to have the opportunity to learn from others and to teach. Some of my most successful teaching innovations and ideas began with dinnertime conversations at these courses and conferences. This blog is one such idea: a group of us got together for lunch at a barbecue joint in Louisville, Colorado during Mark Caldwell's NITA Public Interest Advocacy Training course. Everyone thought it was a good idea, and Hugh, Charlie, and I got elected to start it. 

Someone should write about this, I thought to myself. Someone should write about what Lou is doing at Pace and how much fun this competition was. And then I started to miss the blog. I made a resolution to start writing again.

Tonight, the students in my basic trial advocacy course are in court, trying a misdemeanor case in a bench trial. Each trial is presided over by one of my trial advocacy faculty adjuncts, all of them experienced trial attorneys and gifted teachers who are good sports about experimenting with new ideas and hair-brained schemes every semester. My teaching assistants are recording the trials using a camcorder, a laptop, and a program called Panopto, which creates a video streaming link that is available almost immediately after the trial is over. Sitting in my living room, I'm able to open these links and view the trials on my smartphone. In the next few days, the student advocates will watch the video recordings of their trials and conduct a reflective self-analysis of their performance.

Five years ago, I hardly used video review in my courses; I didn't believe in it. Now, I wouldn't teach without it. Certainly, I couldn't have watched a trial on my smart phone, less than two minutes after it ended, in my living room 15 miles away from the law school. Every semester, when I start revising my syllabus, I think about the ideas I've heard about at conferences, or read about in articles people have submitted to the blog, and I ask myself: what can I do to make this course better than the last one? How can I improve as a teacher? 

This year, we've included a misdemeanor bench trial halfway through the semester based on a proposal that an LLM student of mine made three summers ago, as modified by a conversation with one of my trial advocacy adjunct faculty. My LLM student had proposed a combination trial advocacy/criminal procedure course that would teach budding prosecutors and defense attorneys to try DUI cases, misdemeanors, order of protection violations, domestic violence, and traffic cases: the kinds of cases that most young attorneys in those offices cut their teeth on. We realized that a substantial percentage of our graduates will likely try many bench trials before they ever get a chance to try a case before a jury. (That isn't always true, though: I just had dinner with a recent alum whose very first trial as a public defender was a jury trial with multiple felony child molestation counts, just a couple of weeks after he was admitted to practice.) Our experiment this semester is to have a misdemeanor bench trial halfway through the semester and end the semester with a more complex case tried to a jury. I think it will work. If the first bench trials--the ones I watched in my living room tonight--are any indication, this could be a winning formula.

Five years from now, I'm sure my trial ad course will have morphed again as I hear about different ideas and watch colleagues try novel approaches in their own courses. I plan to keep documenting these changes and posting them to the blog. For those of you who have been dying to write for the blog but have been wondering what happened to it, please join with me (and Charlie and Hugh, both of whom now owe me at least an article in the next month) in revitalizing the blog. Send your articles (an email to me is good enough; I'll take it from there), and we'll get them posted and distributed.

--Chris Behan