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Wednesday, April 20, 2016

The Trial of Teaching Law

A significant number of law professors are former trial lawyers.  Trial lawyering skills if made an intentional part of the teaching method in large, first-year doctrinal classes can improve and enrich the learning experience for students. 

This post explores the parallels between the two disciplines/skillsets.

So, Ladies and Gentlemen, here are ten insights on the trial method of teaching law. 

  1. Teaching is a show. Teaching must blend seriousness and entertainment, substance and style.  Students and jurors expect to be engaged not just by the material, but by how the material is produced.  Production value, humor, and content all matter.   
  1. Classes, like trial preparation, must be fully prepared, completely structured, and yet flexible. Like a witness examination, every question must be scripted, considered, evaluated, placed in order, but all of it can shift in a moment.  In cross-examination this is called “dynamic cross-examination.”  Teachers must learn to be dynamic cross-examiners, methodical, but open to the insights (or misstatements) of students in class.   
  1. You are always talking to everyone in the room. Teaching to a big class (even when questioning one student) is generally a silent dialogue meant to stir reflection in the other students. The questions to a particular student, like those to a witness on the stand, are not merely directed at the student/witness but to the audience of jurors/other students.  This is a misdirected teaching method, where the professor’s questions (like the lawyer’s) are just as important and informative as the answers.  
  1. Teaching is not about the moment, but the synthesis in the end. A good class is not about imparting particular facts to individual students, but about spurring continued deliberation after class.  Just as the questions on cross-examination and arguments in opening and closing are meant to give focus for later jury deliberations, so are the questions and lessons in class meant to encourage on-going deliberation beyond class.  Everything in trial and class is preparation for the synthesis.
  1. Teachers must focus on the audience, not themselves. Even the best, most high-profile trial lawyer, knows that once in the courtroom, it is not about the lawyer but the jury.  Everything must be done to focus on the audience, not the professor. 
  1. Teaching is translation. You are distilling complex legal problems for non-lawyers.  Before juries or 1Ls, your goal is one of translation – teaching a new language, new concepts, and making them relatable to people who otherwise might not care about the issue.  Jurors learn through different methods, so employing different teaching styles may allow you to reach more jurors/students. 
  1. Teachers are storytellers. You are blending narrative, image, and drama in the context of making it relevant.   This is not someone else’s case or law, but the students/jurors’ law.  They must internalize it, own it, and see themselves in the cases, the conflicts, and personally affected by the tensions.
  1. Teachers must bring the world outside the classroom into the classroom. Trial lawyers must figure out a way to bring the outside world – values, common sense judgments, insights – into the courtroom, without distracting from the specific case at hand.   The facts of the world inform the facts of the case, and each fact, witness, or argument can be an opportunity to reflect on this outside world.
  1. Process, ritual, order matters. Respect for the classroom and the court must be maintained to elevate the process.  A courtroom always maintains a sense of professionalism, distance, and respect.  So must a classroom. 
  1. You don’t always win.  Every time two lawyers walk into court, one of them loses.  Yet they still come back.  That lesson also applies to teaching law students.  You always have another class.

I rest my case, but look forward to the continued adversarial deliberations online. 

Posted by Andrew Guthrie Ferguson on April 20, 2016 at 01:27 PM | Permalink


I reckon that of the fulltime doctrinal faculty at law schools, only a very small number have actually been first or second chair at a civil trial representing a private client who was paying.

That's fine and all, and public defense work and public interest work and criminal prosecution and even being a litigation associate at a major firm are all experiences that help inform one's teaching and research. And for purposes of this post I understand that all offer some of this experience.

But the process of arguing at a complex civil trial is unique in that it requires everything this post speaks of, only more of it. And this is even irrespective of the fact that at almost all law schools, private civil litigation (in various forms) is among the most common fields students will go into. I recognize that it's tangential to the thrust of this post, but there's no surer way to raise hackles than to assert that "[a] significant number of law professors are former trial lawyers."

Posted by: Gruntled Adjunct | Apr 21, 2016 7:43:11 PM

My thought was that if teaching is a bit like a trial, it is most like direct examination rather than cross. You are trying to gently encourage the "witness" to demonstrate what they know rather than trying to trip them up as you would on cross.

Jeff - I think of myself as a trial lawyer, although I probably wouldn't meet your criteria. I spent six years as a litigation associate at a law firm. During that time I did many depositions and argued some discovery motions in big cases. I was never first chair at a major trial. I took a couple of small pro bono cases over the years in which I acted as sole counsel. Some of those resulted in hearings of various sorts, but none went to a trial. Later, I worked as a prosecutor for several years. But again, I worked on very large cases and I was never first chair. I did second chair a significant (one year long) trial.

Litigation is a very hierarchical field. If you are working on big cases, then unless you are one of the most senior lawyers on the team, your opportunities for court time will be limited or nonexistent. But I still learned a lot from what I did do and from watching more senior lawyers perform.

Posted by: Stuart Ford | Apr 21, 2016 11:07:45 AM

I have done a rough count that there are over 175 former public defenders currently teaching in the legal academy. I imagine if you add the number of former prosecutors and former civil lawyers who handled trials, through legal aid or actually big law civil litigation, you can get to a "significant" figure. But, it would be a great project for someone to undertake.

Posted by: Andrew Ferguson | Apr 20, 2016 10:13:54 PM

These are interesting points, but I want to quibble with your first sentence. Before I do, I also want to make the point that it doesn't take having been a trial lawyer to be an able classroom performer.

Here's the quibble. Define "significant number." There are lots of law professors who spent a couple years as litigation associates in large law firms. I doubt they did much trial work as I would define trial work. I have known a lot of big firm litigators over a 37 year career (I was one for ten years), but a relatively small percentage could be called trial lawyers, and even fewer GOOD trial lawyers.

I'm curious how many of the "doctrinal" professors (non-adjunct, non-clinical) at ABA-accredited schools were: (a) first chair in a jury trial of any magnitude in any court, (b) first chair in a bench trial or evidentiary administrative hearing, (c) non-first chair but examined a witness or made an opening statement or closing argument in front of a jury, or (d) non-first chair but examined a witness or made an opening statement or closing argument in a bench trial or evidentiary administrative hearing.

I'm not discounting motion practice or taking depositions, but to the point of your list, they don't involve the kind of theater that trying a case, particularly to a jury, involves.

Posted by: Jeff Lipshaw | Apr 20, 2016 4:12:10 PM

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