LEX 7836

INTRODUCTION TO COURSE AND COURSE REQUIREMENTS

1. Introduction

This course is designed to introduce you to the fundamental techniques and theory necessary to conduct a trial in court. The means by which you will learn both is primarily through reading and performance of simulated trial advocacy problems, but there will also be class discussion and videotaped or live lectures and demonstrations.

The progression of the course is as follows. Most of the semester will be devoted to exploring the individual components of a trial (openings, direct and cross examination, exhibits, expert witnesses, etc.). In the last few weeks of the term, this learning will be put together in a simulated civil or criminal jury trial in which you will represent either the plaintiff or the defendant in partnership with another student. The trial will last around 4 hours and every effort will be made to have real jurors in attendance. Case files and separate instructions covering the details of the full trials will be handed out later in the term. Because the trials will take a longer than a class period and must be scheduled in the last two weeks of the semester, you will probably have to adjust your work or class schedule to accommodate your trial assignment.

The best way to learn trial advocacy skills is through experiential learning — by performing the attorney’s role and receiving feedback on that performance. This method of teaching trial advocacy was pioneered in 1971 by the National Institute of Trial Advocacy and is sometimes called the "NITA" method.

Essentially, experiential learning is a rejoinder to those who would define the role of traditional legal educational methods as teaching one to "think like a lawyer." Experiential learning responds that it doesn’t do you much good to think like a lawyer if you can’t act like one. Further, you do not learn to act like a lawyer simply by talking about what you "would do" in a given situation. The idea of the experiential methodology is to "do it," to observe the consequences of your actions, to get feedback on what you just did, and to think about different ways of approaching and accomplishing the task. Because such active experiential learning is the mode of instruction, enrollment in this course is limited to permit all students to participate actively in the roleplays.

3. Requirements for Roleplay Sessions

Fortunately, poor preparation and attendance have rarely been problems in trial advocacy courses. Whether this results from genuine interest, fear of embarrassment or a combination of the two varies with the student involved. In any event, to ensure that everyone knows what is expected, the following is offered:

Assignments Adequate preparation for and attendance at all class sessions are essential. The attached Class Schedule sets out reading assignments and problem assignments for each class. More specific assignments will be made once we get underway.

Preparation First, you should think through the exercise. Determine both what legal elements are required for you to establish your claim or defense and what your best arguments are. Then decide what parts of those arguments are supported by facts coming from this witness and construct your examination or evidentiary issues to focus your examination or argument to support them. Second, think about the problem from the opposing side’s perspective and anticipate objections or other tactics that might be used against you. If issues of evidence are involved, you may have to consult a standard text or materials on evidence to refresh your knowledge.

Witness Roles Students in the class will perform the roles of witnesses in the roleplay exercises. When you are asked to be a witness, choose an appropriate personality for your role and try to "testify" from memory. In choosing a personality, you will be most helpful to fellow students if you avoid bizarre or neurotic personalities. You may choose your own personality (unless you are bizarre or neurotic). Inevitably, you will be asked questions which cannot be answered from the facts given in the prepared materials, usually questions of detail that are not included in the statement of facts in the problem. When this happens, answer in a manner that would be realistic for a witness in the position of the one you are playing and that is consistent with the information in the problem and with the personality of the character you have assumed. Questions about the witness’s background may be answered with any information compatible with the role, including, when appropriate, information from your own background. For some questions (e.g. training and experience of a police officer witness) this may require some prior thought.

What Law Applies? Our focus is not on substantive law except as it may be necessary to analyze tactics and proofs. If the applicable law is not specifically described in the problem, assume that the jurisdiction follows the majority rule. Unless otherwise indicated the federal rules of procedure and evidence apply.

Opposing Counsel and the "All-Object" Rule Generally each student who performs will be opposed by one or more students playing the part of opposing counsel, usually through interposing appropriate objections. There has sometimes been a problem that students who are playing the role of opposing counsel refrain from aggressively making appropriate objections, perhaps in the hope that examining counsel will remember the favor should the tables be turned at some later time. Opposing counsel who do this are not doing anyone a favor. They are cheating themselves out of the important experience of making objections and are cheating examining counsel out of the experience of responding to them. If this become a problem, we may need to resort to the NITA "all-object" rule. Under this rule, any student in the room, whether or not designated as opposing counsel, may state appropriate objections to questions or evidence.

5. Feedback on Roleplay Performances

Each roleplay performance will be followed by in-class faculty and student critique and discussion. While you may expect to learn a great deal simply by performing the roleplay exercises, post-performance critique is an essential part of the program. It not only helps to guard against the development of bad habits, but is essential to explore alternate ways that the exercise might have been approached and executed.

I do not claim not to know all the correct answers to questions of trial strategy or technique, nor do I even claim that "correct" answers exist for many trial advocacy questions. It is not unusual that there would be a difference of opinion regarding many trial advocacy performances. It is not my intent to stifle dissent. However, if you happen to disagree with a particular critique of your performance, I would ask that you not spend class time "replying" to that critique. The time we have is very limited given all we have to do and the number of people who will be performing. I would be happy to talk with you outside of class.

Experience shows that the experiential learning method, like actual trial work, is as emotion-laden as it is difficult. One’s ego becomes deeply involved in the result, whether it is a verdict or a critique of a performance. At the same time, experience has shown that students appreciate and profit most from frank and direct feedback. While I try hard to avoid hurting anyone’s feelings, I may on occasion fail to combine tact with the other qualities of a good critique. If this happens, I hope you will forgive me.

6. Video Taping

One of the most important parts of learning by doing is the opportunity to observe oneself on video tape. Only by doing so will you be able to make your own judgments about things you want to change or, for that matter, things you don’t want to change. Your roleplay performances of the trial advocacy problems will be recorded in chronological order on the video tape thereby providing you with a complete collection of what, it is hoped, will be steadily improving performances. Your full final jury trials will also be video taped.

You are required to purchase a video tape (VHS) upon which your performances can be memorialized. You are required to watch the video tape of each of your performances and to write out a 1-2 page self-critique. This paper is due the week following your performance. You will also be required to view your entire jury trial tape and turn in a 4-5 page self-critique of that performance at the end of the term. Although I will not have time to schedule individual video tape reviews with everyone, I will be happy to review any video tape of any performances you wish to have reviewed. Remember that you should not rewind your tape after viewing it. Otherwise you might inadvertently record over a past performance at your next class.

Video review is particularly useful for observing and critiquing non-verbal aspects of your performance. I am available as time permits to give you personal feedback on your videotapes. If you would like me to view one of your video-taped performances with you, please see me about it. It is helpful if you have reviewed the tape yourself and are able to show me particular parts that you want me to comment on.

7. Reading Assignments

The text for the course is Seven Lubet, Modern Trial Advocacy, 2d ed. (NITA 1997). Though I do not agree with all that is said there, it is a good book. The reading assignments from the text are set out at the beginning of each set of problems you are assigned. For example, for direct and cross examination, the grey page before Problem 1 (on page 5) states that the relevant chapters for problems in this section are in Chapters 4 and 5.

I will be lecturing a little on each trial skill as we come to it and there may be "mini-lectures" in between and student performances. However, my comments are no substitute for the reading and it is expected that you will prepare for the roleplay exercises primarily on the basis of reading assignments. Foremost in my mind in requiring that you get your "instruction" from the book is that lectures necessarily cut down on the time available. Class discussions and the roleplay exercises will proceed on the assumption that the assigned reading has been read. If you have questions on the readings, bring them up in the class.

Each simulation potentially involves issues that have not been covered in any assigned reading. Consequently, in preparing for simulations you may need to look up and read pertinent parts of the text or other sources that have not been assigned. This is particularly true of evidence problems that may come up in the roleplay exercises.

8. Course Requirements and Evaluation Methods

In my experience, there are two components to good lawyering: good strategy and implementation. In trial advocacy, good strategy means that you have thought through a particular case or part of a case and have formulated a plan in your mind for how you will approach the case or witness that will maximize your client’s position with judge or jury. Good implementation means that you have employed the appropriate trial advocacy skills and techniques to make that strategy succeed in reality. Both good strategy and good implementation are required. Great technique that implements a dumb strategy will not accomplish what you want, and a great strategy is of little use if you do not have the skills and ability to implement it. Proper evaluation of your performance in the trial advocacy portion of this course will of necessity take into account both strategy and implementation.

Evaluation of the quality of your performances is necessarily subjective. It bears mentioning as well that some individuals are more talented than others, and that this is especially true with a skill as complex as trial advocacy. Grading in this course will to the extent possible take all these considerations into account. Thus, if your approach to a witness or presentation of the case has been thought through and is defensible, you will not be graded down even if it is not the approach that I would have chosen. In addition, the grade you receive will reflect both the quality of your performance and the extent to which you have worked hard and improved through the semester.

Grading will be based on the following breakdown: 50% on your attendance and quality of roleplay performances and discussions in class, including the allied written assignments connected with them, and 50% and how well you do in your final trial, including the quality of the written self-critique of your videotaped trial performance. More specific information on your final trials will be distributed later.