Tuesday, April 17, 2018
This is the second post in the "Good Litigating is Good Teaching" series.
Part Two: Getting A Good Start
For an easier and more internally consistent reading experience, I will use female pronouns (“she,” “her”) to refer to trial counsel and male pronouns (“he,” “his”) to refer to professors.
Voir Dire the Jury
A trial attorney spends a fair amount of energy (and sometimes money) contemplating the type of jurors that would be best for her case. This pre-trial preparation is then followed by a well-choreographed discussion with the prospective juror.1 Recognizing the potential benefit, trial counsel routinely invests time getting to know her jurors, even though the juror will likely only serve on the case for a few days. Conversely, a professor knows, at the outset, that he will be with his students for at least one semester, if not the entire academic year. Yet the professor routinely knows less about his students than trial counsel knows about her jurors. The professor should voir dire his students in order to get to know them, and then tailor his classroom presentation to his audience. Are the students primarily visual, aural, read/write, or kinesthetic learners?2 Why have the students enrolled in the course? What do the students hope to learn during the semester?
Clearly Explain the Day-to-Day Logistics
Once selected to serve, jurors want to know, at the outset, the day-to-day logistics of jury service. For example, jurors routinely stress about where to park, if they will be paid for their service, and whether they are really qualified to serve?3 Students, likewise, stress about the logistics of the course. Students want to know how many pages they will be expected to read each week, the professor’s office hours, and the method(s) of assessment. A comprehensive syllabus and overview of the professor’s expectations—at the very beginning of the course—eliminates most of these common student stressors. A syllabus that merely lists the chapters that will be covered during the semester is woefully insufficient. The student should be apprised of every aspect of the course.4
Give an Opening Statement that Outlines the Basics
“Often, jurors know very little about the law [or facts] relevant to a case prior to the end of the trial….”5 Acknowledging that jury instructions are not typically given until the end of a trial, a trial attorney will frequently use her opening statement to explain not only legal concepts and terms of art, but also factual locations and the relationships of the parties to ensure that the jury has a basic understanding of the case. Moreover, some judges provide jurors with basic information about the facts and relevant legal background at the start of the trial to further educate the jurors.6
A professor, likewise, should not assume that his students understand the basics about legal theory, politics, world geography, or current events. The professor should begin the class discussion by laying the groundwork to ensure that the student has a baseline understanding of the topic, and then providing the student with an easily understood statement of the rule, a.k.a. “the black letter law.” Admittedly, some law professors will scoff at the notion of “spoon-feeding” the students the law, but much of the literature suggests that providing this basic framework allows the student to more quickly and effectively dive deeper into thoughtful analysis.
 For a discussion on best practices during voir dire, see Michael J. Ahlen, Voir Dire: What Can I Ask and What Can I Say?, 72 N.D.L.Rev. 631 (1996).
 The VARK learning styles questionnaire assists learners by identifying their learning style preferences: Visual, Aural, Read/Write, or Kinesthetic. See https://vark-learn.com/
 Julianna C. Chomos, et. al, Increasing Juror Satisfaction: A Call to Action for Judges and Researchers, 59 Drake L. Rev. 707 (2011).
 See Nira Hativa, Teaching Large Law Classes Well: An Outsider's View, 50 J. Legal Educ. 95 (2000).
 Increasing Juror Satisfaction at 719.
 Increasing Juror Satisfaction at 719-720.