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Tuesday, July 03, 2012

Greetings and War Stories

Greetings, and many thanks to Dan and Prawfsblawg for the invitation to blog again. I don't bring a specific blogging agenda to this visit. But I am thinking about teaching more than usual for the off-season, because today I started teaching summer crim pro. And after class today, I thought about teacher "war stories."

Before teaching, I practiced as a public defender, and I continue to practice as appointed CJA counsel on federal appeals. As a result, I do find myself lapsing periodically into classroom war stories. I don't know whether students see these stories as particularly helpful or just self-indulgent, although I do consciously attempt to ensure any war story illustrates something from our class discussions. But I do follow a couple of rules: (1) to protect confidentiality, no names of clients, other lawyers, judges, witnesses, or other obvious case identifiers, and (2) generally, I do not discuss my pending cases in the classroom--I don't think I'm often ready to wear my classroom teaching hat in a case where I am still actively advocating for my client, and I worry about confidentiality slips even more with a pending case.

What thoughts from teachers and students on war stories? Little pedagogical value, even when entertaining, or a great insight into how textbook law works in the real world? Any important rules teachers should follow when telling classroom war stories? And, what memorably good or bad war stories have you used or heard for classic law school topics?

Posted by Brooks Holland on July 3, 2012 at 04:42 PM in Teaching Law | Permalink


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I think war stories are hugely important, especially when teaching criminal procedure. Such stories are the bridge between what the book says and what actually happens, and they make the legal issues come alive for students in a memorable way. I suspect students remember the stories long after they have forgotten almost everything else about the course.

Here's one example. When I teach Whren v. United States, we debate the merits of a Fourth Amendment rule that hinges on the subjective intent of the officer in conducting searches and seizure. We talk about whether officers lie, etc. I always tell the story of a case I had in which I was prepping an officer who was testifying in the trial. Just out of curiosity, during the prep I decided to ask her why she had pulled over the suspect's car. She broke out of role and said, "Wait, how should I answer that?" I think that's a good demonstration of why a subjective intent test doesn't work.

Posted by: Orin Kerr | Jul 3, 2012 8:35:37 PM

I agree. War stories, like any other pedagogical technique, can be a benefit or not depending on whether they are used judiciously. They have the potential to be self-indulgent, but your instinct to limit them to those that illustrate something from class discussion is spot-on (and your other self-imposed limitations re confidentiality, etc., are clearly prudent).

I also think their usefulness can vary greatly depending on the course. Crim Pro seems like a wonderful class to use them; there are so many warrant exceptions, etc., to teach, that there is a risk that it can become a haze of doctrine, when, in fact, crim pro is a topic that (at least potentially) has a significant direct impact on ordinary citizens, and is something that students need to understand in the context of the actual process by which it unfolds.

Conciseness is key, and as with anything, something colorful to keep the student entertained is best.

I teach Evidence and Trial Adovcacy (among other things), topics which also readily lend themselves to war stories. Here is one (that, as I look it over, is not so concise after all):

I have found that many students, despite a steady diet of Law and Order, etc., don't actually have a good understanding of how trials unfold. And so I give a brief overview of the stages of a trial, including the parties' respective cases-in chief and the rebuttal case. When a student asked for an illustration of rebuttal, I talked about my federal bench trial involving, of all things, donuts. (Diversity case; donut shop owner sued my client, manufacturer of donut-making machinery, for breach of contract/warranty of merchantability, for providing a machine that made allegedly heavy, greasy donuts.)

After the defense rested (having disputed plaintiff's testimony about the quality of the donuts and the representations made about them), the judge turned to plaintiff's counsel and asked: "Any other witnesses?"

"Just one, Your Honor," he said, dramatically opening the double doors of the courtroom, as in walked a man with a box of a dozen of our donuts in his left hand, and a dozen Krispy Kremes in his right. "Taste for yourself, Your Honor," said plaintiff's counsel.

The judge said, "If there was a jury, they'd be the fact finder, they'd taste the donuts. I'm your fact finder, I'm tasting the donuts." So he tasted one, tasted the other, tasted one, tasted the other. He holds up our donut and says, "This is a greasy donut." He then holds up the Krispy Kreme and says, "This is also a greasy donut. Donuts, apparently, are greasy products. I wouldn't really know since I don't eat junk food and haven't eaten one in decades."

During closing argument, the judge turned to plaintiff's counsel and asked, "Are you saying defendant promised merchatanble donuts, or that they would be as good as Krispy Kreme?" Backtracking from the position he had consistently taken pre-trial, plaintiff's counsel said, "Just that they would be merchantable."

The case hinged on that one response. The judge said, "If you had told me they promised they'd be as good as Krispy Kreme, you'd have won. If you go in for donuts, there's nothing like Krispy Kreme. But if someone wants to put that sort of thing in their body, the defendant's is edible enough, so you lose."

I get mileage out of that anecdote to illustrate the importance of knowing your theory of the case, of reading cues from your judge, distinguishing the role of judge v. jury, among other things.

There are others, but I've gone on far too long already.

Posted by: Martin Pritikin | Jul 3, 2012 6:51:23 PM

I always loved war stories as a student, and will use some in my class now. I think it's a great glimpse into law practice.

Posted by: Margaret Ryznar | Jul 3, 2012 5:57:36 PM

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