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Courses Bring Courtroom Conflicts to Classroom

August 16, 2005

More popular than ever, three integrated courses at Northwestern University School of Law combine real-life conflicts of the courtroom with the standard classroom dissection of dense rules and doctrines to bring home the fluidity of laws as they come into play.

Offered through the Bluhm Legal Clinic, the integrated courses  -- on evidence, ethics and trial advocacy – bring alive competing laws and doctrines that law schools teach primarily through the scrutiny of appellate court cases. Combining issues normally covered only in separate courses, the sequence is at the heart of the law school’s nationally recognized Program on Advocacy and Professionalism.

“When we started teaching the integrated courses 12 years ago, approximately 35 students were enrolled,” said Professor Robert Burns, co-creator of the sequence. “Today the sequence enrolls about 100 people – or almost one half of the entire law school class.”

Students, working with professional actors, “litigate” the same two cases, one on defamation and the other on murder, in all three courses, learning how different categories of abstract rules intersect during actual legal practice and affect the evolving dynamics of litigation.

The materials are structured so issues of client perjury are considered in ethics, while direct examination is a focus in trial advocacy. Confidentiality is examined in ethics, while attorney-client privilege is considered in evidence. The ethics of closing arguments are studied while students are drafting and delivering closings in trial advocacy, and so on.

Cathryn Crawford, a law school alumna and former participant in the trial advocacy trilogy who is now an associate clinical professor in the Bluhm Legal Clinic, cited the experience and confidence she gained from working with skilled practitioners on the ethics issues and rules of evidence embedded in the case files.

Performing before her classmates, identifying issues in a real-world setting and developing her own style of examinations, while responding to objections, can’t compare, she said, to answering hypothetical questions in a casebook.

“I participated in my first jury trial six months after graduating from law school and was astounded at how influential the case files were to my understanding -- and retention -- of the rules of evidence,” Crawford said.

A leader in trial advocacy teaching that dates back to the early 1900s, Northwestern is the first law school to employ the simulation method to integrate evidence and ethics with trial advocacy in a fully coordinated introduction to litigation program. Over the years, parts of the materials for the courses, published in three books, have been used by approximately 35 other law schools.

Published by the National Institute of Trial Advocacy (NITA), the books, “Problems and Materials in Evidence and Trial Advocacy,” volumes I and II, and “Exercises and Problems in Professional Responsibility,” were written by Burns and Professor Steven Lubet. Professor Thomas Geraghty, associate dean of clinical education and director of the Bluhm Legal Clinic, joined them in writing the ethics materials.

“This sequence builds on a long tradition of teaching trial advocacy at Northwestern,” said Geraghty. “Way back in 1905, John Henry Wigmore, who served as dean of the law school from 1901 to 1929, set up the first trial advocacy course, which soon afterward evolved into the simulation of trials. Wigmore was very strong on theory, history and classroom teaching, but he was equally adamant that students ought to be taught the practical aspects of lawyering.”

When NITA was founded in the early 1970s, Northwestern law professors enrolled in the first course in Boulder, Colo., and brought back a new approach to teaching trial advocacy that is utilized today.

The contributions of the co-creators of the integrated courses, Lubet and Burns, are at the center of the trial advocacy program’s national reputation today. Lubet, director of the program on advocacy and professionalism, has written one of the country’s leading textbooks, “Modern Trial Advocacy,” which has been used at more than 90 American law schools and which has been published in Hebrew, Chinese and Canadian editions. Burns received the Robert Childress Memorial Award for Teaching Excellence in 1996, 1998 and 2002, and, in 1997, was elected outstanding professor of a small class. He is the author of “A Theory of the Trial” (Princeton University Press).

Taught by Bluhm clinical faculty and staff, the courses also are led by a number of prominent lawyers from public and private practices.

The idea for the sequence grew out of Burns’ and Lubet’s continuing legal education of young lawyers through NITA. “It became clear during the simulated litigation exercises that young lawyers who most likely had gotten A’s in evidence could not recognize evidentiary issues as they arise in the context of actual practice,” Burns said.

In other words, they had learned the grammar rules, but not how to speak the language, according to a metaphor that Burns cites frequently. “The central idea is that law is primarily a practice, and the rules are abridgements of good practice,” he said. “Evidence, for example, is sort of the grammar book of trial law -- of the language that goes on in the courtroom. Just studying the grammar rules in abstraction from the reality of practice is like studying all the grammar rules of a language you neither speak nor write.”

By just reading cases, you can’t get close to understanding the complexity of issues that arise during litigation, according to Burns and Lubet.

“The ethics course, for example, illustrates how the rules of legal ethics leave may open spaces,” said Lubet.

The “plaintiff,” Jesse MacIntyre, a 25-year-old housekeeper, is suing her former boss, the wealthy Ross Easterfield. She quit her job when Easterfield insinuated that she had stolen his wife’s diamond brooch. Later during her job search, MacIntyre said, Easterfield made false and defamatory remarks about her.

A strongly religious person, the “plaintiff” wants reconciliation with Easterfield and a return to the household. But her lawyers strongly disagree. They believe the former boss is untrustworthy and should be sued for a significant amount of money. A tug-of-war ensues over what is in the best interest of the client, and after a couple of weeks of negotiations, “attorneys” working on the case need to participate in disciplinary hearings.

“As students go back and forth with the client in the process, there are several decision points at which they could settle in a way that reflects her preferences or theirs,” said Lubet.

“The negotiations highlight how many of the most important moral decisions that lawyers make are effectively insulated from the disciplinary process. Students get a clear grasp of how lawyers control the agenda and a sense of the potential for manipulation.”

An informal poll that Burns takes of students in the evidence course illustrates how students’ attitudes about the usefulness of the laws they are learning change over time. 

“At the beginning of the course, students are more inclined to think that the law of evidence gets in the way more than it helps,” he said. “But by the time of the final, most students come away with at least an appreciation of the difficulty of creating a set of rules that balance the conflicting values at play in a trial system.

“They see that lawyers need to balance factual accuracy with respect for their parties’ rights and privacy. They also see how lawyers need to appreciate juries’ intelligence, while acknowledging that under conditions that prevail in any trial system juries may not be able to process certain evidence.”

Crawford pointed to how lessons of the case files came into play during her first trial.

“My client had made a statement immediately after the incident that gave rise to litigation, which I needed to get admitted into evidence,” she said. “I immediately thought of a statement made in the People v. Mitchell file, “Oh, no, Joe,” an excited utterance which is an exception to the hearsay rule. I drew upon that evidentiary rule and got my client’s statement admitted. I cannot tell you how many times in my career I have linked an evidentiary rule to that case file.”

The training from the advocacy trilogy, she emphasized, gives students a strong base for becoming both competent and responsible courtroom advocates.

“Students learn how demanding a lawyer’s task is,” said Burns. “And they come away with a sense of how the rules that we’ve devised, both of evidence and professional responsibility, are very imperfect attempts to solve very difficult problems.”

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