Sunday, August 19, 2012

What Legal Writing Professors Can Contribute to Improving Teaching in the Academy

Last week, I discussed what legal writing professors do. (here) Today, I would like explain some of what legal writing professors can contribute to improving teaching in the academy. In doing so, I am drawing on a very fine article by Lisa McElroy, Christine Coughlin, and Deborah Gordon, The Carnegie Report and Legal Writing: Does the Report Go Far Enough?

First, because they correct so many assignments in detail and provide opportunities for rewriting, legal writing professors are experts in formative assessment. "Because they are regularly engaged in both formative [feedback during the semester] assessment and summative assessment [assessment after the end of class] of student work, they may be the most experienced and skilled assessors in the legal academy, and written and oral formative assessment may even be deemed legal writing’s 'signature pedagogy.’" Summative assessment "assigns grades and class rank (which may be important to future employers) but does little to improve analytical abilities or class performance (which is even more important to future clients)." Formative assessment helps students learn in steps as part of a process, it helps students see they are progressing to their goals, and it helps students attend to learning, which aids both short- and long-term memory. The Carnegie Report stresses the need for frequent formative assessment. Legal writing professors can teach their colleagues about formative assessment.

Second, legal writing professors can show their colleagues how to help their students become reflective learners. "[H[elpful techniques involve self-reflection in the learning process, such as private memos, soliciting general feedback about individual understanding of course concepts (either generally or using directed substantive content questions), journals, and self-ratings. There is also a range of self-instruction techniques, typically computerized, ranging from self-graded or ungraded practice exams, to self-scoring computer quizzes, CALI exercises, and electronic group assessment systems."

Third, legal writing teachers can show their colleagues that the best teaching is interactive and experimental. This is important because interactive and experimental approaches grab the students’ attention causing them to remember more than from just lecture. In addition, these approaches teach skills that lecture does not. " These mechanisms allow students to experience legal problems in ways that go beyond and enhance dialogue over individual cases; in other words, to 'practice' being legal professionals."

Finally, legal writing professors can show their colleagues how using practical exercises, such as "oral arguments, negotiating contracts, reading and reviewing case histories, and engaging in problem-based learning" can help student learning.

In sum, legal writing professors can help their colleagues improve their teaching because legal writing professors are already using best practices.

(Scott Fruehwald)

P.S. I am not criticizing doctrinal professors in this post. Rather, I am showing that legal writing professors have a lot to contribute to their law schools concerning teaching techniques because they have different teaching experiences.

August 19, 2012 | Permalink | Comments (0)

Knowing when to object during a deposition

Here's a good checklist of proper and improper grounds for objecting to opposing counsel's questions during a deposition courtesy of the Lawyerist blog:

Many lawyers have not done their homework and make deposition objections that are improper and interrupt the flow of information. And there are other lawyers who have done their homework and make objections simply to interrupt that flow and to intimidate opposing counsel.

Remember, the purpose of a deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible. Rather, can it lead to admissible evidence?

Improper Deposition Objections.

  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is so far afield, a relevance objection may be warranted. 
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition.  For example, if you ask the deponent, “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. You can determine based on the answer whether you should take Jane’s deposition and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial.
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence.
  • Calls for an opinion. You do not need to lay foundation to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion. Those answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. Objections should be stated succinctly in a non-argumentative and non-suggestive manner.

Proper Deposition Objections

  • Privilege. This is the big one.  It must be made or it is waived. This covers any privilege such as attorney-client and physician-client. You can ask, “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is the one rare case in which a deponent should be instructed to refuse to answer.
  • Form of the question. This objection is usually asserted to make a clear record.  For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record.
  • Asked and answered.  This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.


August 19, 2012 | Permalink | Comments (0)

21 Ways to Stop Procrastinating

The Time Management Ninja suggests 21 ways to crush your procrastination.

As for me, I am lured into procrastination when I am not sure how to accomplish the next piece of a project or generally feel overwhelmed by the enormity of what lies ahead. My best solution is to identify a part of the project that I think will be easy and then take it on. When I take a deep breath and dig in, I usually discover that the fearsome project is not as fearsome as I expected it to be.


August 19, 2012 | Permalink | Comments (0)