EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 16, 2013

The First Day of Class: A Guest Post by Kevin Lapp

First things first: thank you to Colin Miller for inviting me to guest blog here at EvidenceProf blog. I taught Evidence for the first time last spring, after having taught the Lawyering course (first-year research and writing) at NYU for three years. This blog, and Colin, were of great help in getting me through that first exhausting Evidence prep.

As someone who is new at this, I’m in the big tinkering stage with the construction of my Evidence course now. I have a better sense of what I want to, and am able to, accomplish. And so it is along the lines of teaching Evidence that I intend to concentrate my postings over the next couple of months. And what better place to start than the first day of class. I am curious about what people do with their classes on Day 1, and what they hope to accomplish by doing so. The particulars of any class certainly matter, such as class size, whether it is made up of only 2Ls (or only 3Ls or some kind of mix), whether the class is required for graduation or not, etc.

For us here at Loyola Law School, Los Angeles, Evidence is a required course for 2Ls. Most students prefer to take it in the Fall, and it’s offered in big rooms, so I have an enrollment of about 108 students. My experience as a Lawyering professor has greatly influenced my pedagogy. I value an inter-active classroom, which means that my class is not dominated by my lecturing, but regularly involves students speaking to the class or amongst themselves in small groups. I also believe that in-role exercises are important to the learning and training that a good legal education should provide, so my students regularly find themselves cast in the role of proponent or opponent of a piece of evidence articulating arguments to students in the role of judges, who then offer a ruling supported by reasoning. 

With this in mind, my first day looks something like this.

After a brief introduction, the first hour involves an exercise where students in role as attorneys articulate arguments either for or against the admission of particular pieces of evidence, and other students in role as judges give a ruling (last year, it was a witch trial; this semester, it is based on the George Zimmerman trial). They discuss the items of evidence in small groups first, and then we reconvene to have a class-wide discussion. During the class-wide discussion, I’m listening for key vocabulary and ideas that will play major roles throughout the year. We’ll take votes on the individual items, and I’ll record the results.

The lesson is not designed to teach the substance of any actual rules of evidence, nor does it expect any such knowledge. Instead, I’m hoping to put before the students the situation that lawyers confront over and over again: figuring out what evidence exists, deciding what evidence they want someone else to hear/see or not hear/see, and thinking about how a lawyer gets that evidence “into evidence.”

There are others goals to this first hour. I want to offer a thread that will run through the entire course. By choosing the particular items of evidence carefully, and recording the class rulings, I will be able to bring back the exercise throughout the semester. When we get to character evidence, or a particular hearsay exception, or expert testimony, I can remind them of their ruling and reasoning on that kind of evidence on Day 1, and we can see whether their intuitions matched up with what the rules require and whether their reasoning matches the Advisory Committee Notes (or the position of critics of the rule).

I also want to set the interactive tone right away. We’ll be doing several similar exercises throughout the semester, so from day one I want them to see that they will be active participants in their learning in the class. Additionally, I want to create space for issues of difference, be they class, race, gender or otherwise. While the exercise itself is indifferent to George Zimmerman’s guilt or innocence, the many dynamics that surround discrete legal issues matter, and I want my students to know that they can raise those issues when they spot them, and we can discuss how they relate to the rules of evidence.

In my next post, I plan to discuss what I do with the second hour of the first day. I’d be interested to hear what others do with their first hour/day, and what other “Teaching Evidence” topics would be of interest. Whether it be selecting a textbook (or not using one at all), using videos and other multimedia in the classroom, guest practitioners or class visitors, field trips, homework assignments and graded/ungraded work other than final exams, it’s certainly something I’ve spent many hours pondering. 

-Kevin Lapp


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My constant struggle with Evidence is finding time to cover all the material, while still covering what I do cover in an engaging and meaningful way. Part of this has to do with credits (3 vs. 4 or more credits). I would be curious to hear what portions of the standard Evidence curriculum people leave out/shorten when they need to make room for other things (one obvious choice for me is authentication, sorry Fred Moss).

Posted by: Jeff Bellin | Aug 16, 2013 3:06:40 PM

Coverage is a great issue. I'll do a post on it soon.

Posted by: Kevin Lapp | Aug 16, 2013 8:15:47 PM

I can understand why Jeff Bellin cuts authentication when something needs to go in a 3-hour Evidence course. After all, it is just common sense, right? All you have to do is introduce evidence sufficient for a juror to find that the thing is what you claim it is. Moreover, admissibility or at least authentication is often stipulated to or accomplished in discovery. Why waste time? Well, notwithstanding all this, I still feel authentication is worth the candle, especially today when more of our students are not going to be hired out of law school by big glass box building law firms where an old war horse from the Litigation Department can tutor them on authentication. They're hanging out their own shingles and have got to be alerted to this evidentiary requirement early on. Dallas judges tell me they often see young lawyers lose their cases because they can't get their evidence in because they can't figure out how to authenticate it. ("Gee, Judge. I printed this off the internet. Isn't that good enough?") Moreover, today there is a contemporary way of showing them the how and why authentication: ESE -electronically stored evidence. How could your students not be interested in how to authenticate an email, a Twitter tweet, or a Facebook posting??? For me, I prefer to eliminate that crypto-evidentiary issue of burdens of proof. (Yuk!)

Posted by: Fred Moss | Aug 19, 2013 2:02:37 PM

I have the luxury of a 4 hour course, and teach authentication early, for the reasons Professor Moss explains and because it helps reinforce the trial/procedural mechanics of evidence law. During our first class today, we argued the admissibility of George Zimmerman's prior 911 calls and the video of Zimmerman describing the events. When I asked how the students offering the evidence would actually get it into evidence, outside of putting a tape/video player on the witness stand and hitting play, there was that great moment of realization that this was both critical information and something they had absolutely no clue about. I promised we'd learn how in a few classes. Time constraints certainly limit how long you can linger on authentication, but I agree that it's something that ideally is not left to a trial advocacy or clinical course.

Posted by: kevin lapp | Aug 20, 2013 9:40:47 PM

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