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Wednesday, August 21, 2013

Evidence Day 1, the Second Hour: A Guest Post by Kevin Lapp

I teach a 4 credit course that meets twice a week. I described earlier what I do in the first hour. This post covers the second hour. At the break, I distribute 3x5 cards and ask students to put on it their name, hometown and what it is famous for, and what their dream job would be. My administrative assistant will then attach pictures to the 3x5 cards, and I’ve got myself a little bit of information about my students that might help me down the line.

I begin the second hour with class rules, and then pull up on the screen a cartoon that has a lawyer telling a reporter “the proof was in the pudding, but the pudding was ruled inadmissible as evidence.” I ask why we would ever do such a thing. A discussion of the purpose of the rules of evidence follows, linked back to the evidence we discussed in the first hour.  Having established that the rules promote accuracy, efficiency, fairness and serve external interests viewed as socially useful by excluding some otherwise relevant information, we spend the remaining time on trial mechanics, including FRE 611 (order of proof, scope of testimony, mode of questioning), 614, 615 and 103 (preserving error).

I do this because one of the bigger challenges of teaching Evidence, or any law school course to first and second year students, is the fact that a good majority of them haven’t taken a case from beginning to end and haven’t been in a courtroom for more than a couple of hours. As such, they lack a basic understanding of trial mechanics. Without that framework, much of the moving parts and considerations that complicate evidentiary issues can be easily lost on them. So it’s my hope that by addressing trial mechanics early, and often, my students will more quickly be able to situate the problems we discuss in class within the lawyering and litigation context in which they arise.

Ideally, by the end of the first day, I‘ve accomplished a few things. (1) My students have heard, and pondered, things like relevance, personal knowledge, prejudice, hearsay, experts and privileges, all tied to a familiar fact pattern. (2) They have participated in a discussion about this stuff, whether in a small class or by volunteering during a class-wide discussion, articulating and listening to reasons for and against the admission of evidence. (3) They’ve been introduced to the basic structure of our adversarial system of resolving disputes, and have begun to understand that the rules of evidence are intimately linked to our process of proof.

One thing I don’t do that intrigues me – I don’t do a substantive overview of the entire semester in 20-60 minutes. I have a colleague who teaches his entire first-year course in 2 days, and then uses the rest of the semester to expand on, refine and critically analyze the contents of that 2 day lecture. I really like the idea of laying it all out there at the beginning. Such a method seems well-suited to helping the students master the core material, and gives them front-end context with which they can take in and assess the details and nuances of the rules we learn. It also lets me flag issues or themes that are important to mastering the material right from the start. Does anyone do anything like that? How about distributing the semester-end review powerpoint the first week? Curious to hear thoughts on this.


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The two day approach is better if one wants to teach legal concepts but your approach is better if one wants to teach legal skills. One needs to know not only what to do but when in the process to do it. It does no good to have the legally correct concept planted in one's head then then blow the opportunity to preserve the error because the novice forgets to do it.

So in the end, if one wants to produce future law professors one is better off with the two day approach. If one want to produce better trial advocates them the legal mechanics approach is superior.

Posted by: Daniel | Aug 26, 2013 11:35:42 PM

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