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Friday, March 18, 2011

Evidence for non-litigators?

While I’m blogging about the curriculum, let me ask a question.  In addition to teaching first-year courses, I also teach Evidence.  At Marquette, as I’m sure is the case at many schools, it’s a required course.  That, of course, means that many of the students have no intention of ever setting foot in a courtroom.  My colleagues and I have kicked around the idea of tailoring one section to those students.  That section might, for example, devote more time to privileges and less time to things like the Confrontation Clause, and would otherwise serve to highlight some of the key evidence-related issues that non-litigators need to be mindful of.  Has anyone else done such a thing?  What are your thoughts, law-professorial hive-mind, about what would be appropriate to include?


Posted by Chad Oldfather on March 18, 2011 at 12:29 PM | Permalink


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as a former transactional/corporate practitioner in a large firm, I can look back on 25+ years of practice and say that my evidence course in law school was a near waste of time, except for marginally reducing my dependence on bar review materials for the bar exam,and the grounding I received in privilege and work-product rules. So I agree with the proposed split.

I would pose the flip-side question: do students who plan to be litigators need to take the same business entity course as their corporate fellows? My school offers a single 5 unit version of Business Associations, which in my view is both too much (for most litigators) and too little (for transactional and tax lawyers). I think I can cover in 3 units enough material to prepare the litigator, but need 6-7 units to get it right for the transactional/tax lawyer.

Posted by: David in Cleveland | Mar 23, 2011 5:45:48 PM

To follow up on Colin's suggestion (which began with a professor taking a survey), why not contact some big and mid-sized transactional lawyers near your school. This will impress them with how seriously your school is taking the job of educating a class of lawyers that may end up at the firms. More importantly, you can ask the transactional lawyers about the degree to which their practice area has drawn on the law of evidence -- or not. Presumably, you'd hear a lot about how evidence affects the interpretation of contracts, but who knows?

You can also ask to look over the "bootcamp" or orientation materials the corporate lawyers have amassed for their new associates. Those materials (which scores of firms have developed) are great evidence of what they feel their associates should have learned, but didn't learn, in law school.

Posted by: John Steele | Mar 20, 2011 2:39:44 PM

The St. Louis University Law Journal did a great issue on teaching Evidence law in Volume 50, Number 4. The article in that issue that was the most influential to me and I think the most relevant to this question was Ric Simmons, The Audience for an Evidence Class: Teaching to Litigators, Scholars, or Bar-Examiners, 50 St. Louis, U. L.J. 1063 (2006). Now, Simmons ultimately explains how he developed an Evidence class that would serve the needs of both litigators and non-litigators alike. But the way that he got there is interesting: He asked students at the start of class to fill out note cards and explain why they were taking the course and what they wanted to get out of it. I think that this would make a lot of sense for the type of class that you propose because the makeup of the class could vastly change what areas you want to (de)emphasize.

But in general terms, I think that the following could be cut from an Evidence class geared toward non-litigators or at least taught only to the extent necessary to take the bar exam (i.e., just teach black letter law and not focus much on policy, circuit splits, etc.):

Rule 103: Objections, offers of proof, and plain error
Rule 105: Limiting instructions
Rule 201: Judicial notice
Rules 301-302: Presumptions
Rule 410: Plea-related evidence
Rule 412-415: Rape shield; rape propensity evidence
Rule 607-610: Impeachment
Rule 611: Mode and Order of Interrogation and Presentation
Rule 612: Refreshing recollection
Rule 613: Prior inconsistent statements
Rule 614: Calling and interrogation of witnesses by court
Rule 615: Exclusion of Witnesses
Confrontation Clause/Compulsory Process Clause

Meanwhile, I think that you are right that an increased focus upon privileges (and work product) would make sense in such a class.

Posted by: Colin Miller | Mar 19, 2011 3:11:54 PM

Perhaps it is time for a new book: "Evidence for Dummy-Attorneys." Even if an attorney decides not to be a litigator, in practicing law attention has to be given to the rules of evidence that might be critical in the event that such an attorney's client gets involved in litigation through another attorney (including perhaps against the non-litigator attorney) In fact, knowledge of rules of evidence might permit the non-litigator attorney to better represent her clients.

Posted by: Shag from Brookline | Mar 19, 2011 6:25:00 AM

I'm chucking over Anon in Bellevue's "Antitrust of Aspiring Academics." That describes to a T nearly all of my courses at Yale -- esp. the fun ones. (With that in mind, feel free to discount the remainder of my comments accordingly.) I took evidence, and learned lots about interpretation and holism and legal theory, and we all laughed a lot in the class. To be sure, the word "hearsay" was Greek to me at the time, and still kind of is, but I managed to pick up enough from BAR-BRI to fake it in a crowd of lawyers, and I've picked up what I needed in practice. So my proposal: "Evidence for Academics," or "Evidence Theory," for everyone. Do student really need the mechanics and specifics of the rules taught in a class?

Posted by: Vladimir | Mar 18, 2011 4:44:09 PM

U Texas has a course with that title.

Posted by: B | Mar 18, 2011 4:22:17 PM

I've taught evidence and can see the value in having multiple evidence classes with different emphases geared to different groups of students' interests. Given that many students take evidence to help themselves prepare for the bar, I think you'd want the core components of all classes to be similar. But it's a fair point that the traditional evidence class glosses over some issues that are of particular interest to students who do plan to practice corporate law -- and, indeed, given that some students don't take evidence until 3L year, they may well already know that they're going to practice corporate law after graduation and for the foreseeable future, so a class that matches those needs could be a useful and valuable asset.

Somewhat in response to the pseudonymous poster above, I don't see a problem with tailoring core classes to groups of people who have different interests and career objectives. Of course it's true that not every law student knows what she'll be doing for the rest of her career. But students are already tailoring their law school curricula to their current interests by signing up for different suites of electives, and we don't have a problem with that -- if we did, we'd dictate the entire law school curriculum from start to finish. Offering multiple iterations of the core evidence course doesn't seem to me to be a significant or problematic departure from what we're already doing.

In short, I think it's an interesting idea and I'd be interested to know how it turns out if you try it -- especially in terms of enrollment and student feedback.

Posted by: Nancy Leong | Mar 18, 2011 4:18:44 PM

The idea is not, of course, to overlook any of the fundamentals of evidence law. But consider: there are some schools where Evidence isn’t a required course at all, there are many ways to structure and create areas of emphasis within an Evidence course without assigning a label to it (e.g, some of us might do lots of Confrontation Clause, others of it none of it), and students make all sorts of choices about courses to take that may not be completely informed by a strong sense of what they’ll end up doing. So it hardly seems silly to say – to take the idea even one step further – here’s an Evidence section that will emphasize things likely to be of value to criminal litigators, here’s one that will do it for civil litigators, and here’s another that will do it for those who deem themselves unlikely to set foot in a courtroom. Maybe they’ll be wrong. But most students are likely to take all sorts of classes that won’t directly bear on their practice (I certainly did). It would make sense to structure such as course so as to ensure that those who did end up litigating would have covered the basics (and, in our case, requiring with Wisconsin’s diploma privilege would make that necessary). Calling it hilarious strikes me as more than a little strong.

Posted by: Chad Oldfather | Mar 18, 2011 4:05:23 PM

I take it that this is a sincere question, but I find it hilarious all the same. Tailoring an Evidence class to meet the "needs" of people who think, as second-year students, that they won't ever set "foot in a courtroom"? How thoughtful! But why not do that for every class? It could be like college all over, though instead of "Physics for Poets" (or whatever), we could have "Patents for Public Defenders" and "Antitrust for Aspiring Academics." The possibilities are truly endless. And even better, no one would ever have to master material they didn't believe, as nascent attorneys, they'd use. Perfect!

Posted by: anon in bellevue | Mar 18, 2011 2:02:53 PM

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