Tuesday, April 24, 2018
This is the third post in the "Good Litigating is Good Teaching" series.
Part Three: Mastering Your Case-in-Chief
After the jury is empaneled and the opening statements have concluded, it's time to present your case-in-chief. Here are some tips for creating an active, engaging, and positive learning environment.
Customize the Presentation
A trial attorney knows that the same direct-examination or cross-examination techniques will not be successful in every trial. Rather counsel must adjust her presentation to the particular case, defendant, facts, geographic location, and judge, as well as a host of other variables. Once the attorney is fully versed in both the law and the facts, she will be able to readily adapt her direct or cross-examination during the trial.
A professor should adapt his classroom presentation to the particular topic du jour, the unique strengths (or, possibly, weaknesses) of the student selected for “the hot seat,” and the level of interest exhibited by the class as a whole. There are times when a traditional Socratic method (or precise cross-exam) will work best. At other times, however, a visual aid would better serve to expedite or drive home the point; meanwhile a broad, open-ended question typically reserved for direct examination may generate a wonderfully unscripted class discussion.
Move Around the Room
Classrooms and courtrooms both possess an innate hierarchy in their physical design. Attorneys and professors are given free reign of the room, while jurors and students are relegated to a fixed assigned seat for the duration. Effective trial attorneys tend to use the entire courtroom, moving around the room deliberately for both dramatic effect and to lessen juror boredom. Professors should likewise explore teaching from the back of the classroom, or consciously walking from the left side of the room to the right side of the room as they transition from one topic to the next. Both jurors and students respond to these visual, non-verbal transitional cues.
Address the Inconsistencies Head-on
Researchers have suggested that judges “should consider sequencing the trial testimony so that opposing experts testify back to back.”1 The same could be said for law professors presenting majority-minority splits. When two cases or policy arguments appear to stand in direct contrast with one another, professors should plan to discuss both during the same class session, or in back-to-back class sessions. Encourage the students to acknowledge the inconsistency, evaluate the pros and cons of each position, and then identify the stronger argument.
Encourage Active Note Taking
The single area in which the classroom seems to be outperforming the courtroom is note-taking and questioning. Until recently, jurors were not permitted to take notes or ask questions. Conversely, students have historically been expected to take notes. With that said, the professor cannot rely on students to always reduce the most important concepts to writing. If a professor absolutely wants a student to have a particular point in their notes, then the professor should consider providing that information directly to the student. This can be accomplished by providing a fill-in-the-blank lecture handout, writing the information on the whiteboard, or incorporating the information into a demonstrative exhibit. More on demonstrative exhibits later.
And, Finally, Prepare for the Unexpected
Attorneys are keenly aware that the client, the judge, the jurors, and opposing counsel will be scrutinizing every word and every action taken during the trial. Consequently, attorneys try to prepare for every reasonable variation or scenario which could occur during the trial. What if Witness A recants or Exhibit B is not admitted? What if the client insists on testifying, despite my advice? Will the jury understand topic C, if presented by Witness D? When should I call Witness E? And so on. An informal study—conducted by students participating in a law school investigations course—further supports the notion that preparedness is the single most important factor contributing to attorney effectiveness.2
The professor should similarly prepare for the unexpected, and, to the extent possible, plan his presentation around the known and anticipated variables. Students (like jurors) are skeptical. The professor should ask himself: how do I best convey my message to this skeptical bunch? Do the students need to learn about topic X before we discuss topic Y? Which student will be called upon to discuss case Z? Is a demonstration or exhibit required to better illustrate the point?
 Julianna C. Chomos, et. al., Increasing Juror Satisfaction: A Call to Action for Judges and Researchers, 59 Drake L. Rev. 701, 721 (2011).
 In Spring 2014, a handful of Duquesne University School of Law students who were enrolled in a Fact Investigations course conducted research aimed at uncovering which Pittsburgh-based criminal defense attorneys were the most "effective." Their research suggested that attorney preparedness was the most important factor contributing to an attorney's perceived effectiveness. The project was inspired by Ronald F. Wright & Ralph A. Peeples, Criminal Defense Lawyer Moneyball: A Demonstration Project, 70 Wash. & Lee L. Rev. (Spring 2013).