Evidence Law
Legal education should engage, challenge, and prepare students for a life-long career, not just the first day of law practice. As an instructor, I really serve as a guide, helping students in a dynamic collaboration to go as far as possible toward expanding their skill sets and values, not just the pizza delivery of a body of information. As William Butler Yeats once said, 'Education is not the filling of a pail, but the lighting of a fire.'
The four-credit Evidence Law course is a core upper-level course and a component of the required curriculum. It is considered a "code" course, focusing on the Federal Rules of Evidence and comparative state law provisions. The learning issues addressed in the course include: the meaning and purposes of the evidentiary rules; the respective roles of judges, lawyers and witnesses; statutory construction; evidence and ethics; and problem solving protocols.
I approach this course as a specialized form of applied trial advocacy, using the trial context as a vehicle by which to teach the course objectives. The engaged and experiential dimensions of the course regularly incorporate a blend of simulated trial techniques, evidentiary objections, and courtroom settings. In essence, there is an emphasis on learning-by-doing. The in-class learning-by-doing contexts include group strategizing and problem solving, direct and cross examination, refreshing recollection, the examination of expert witnesses, laying evidentiary foundations for exhibits, hearsay statements and other rules, and, time permitting, student participation in a final trial prior to the end of the semester.
I have taught the subject this way for approximately twenty years at several different law schools. Given the variations in the number of times I taught this course each year, I likely have taught this applied version of Evidence more than 20 times. I teach the course this way because I think it is more effective, useful and fun, not necessarily in that order. While embedding the rules of evidence in their natural context of trial practice can be more challenging for students during the semester – given the speed and extended skill sets required for knowledge and technique acquisition – the trial context creates relevancy for students and deeper learning, both immediately and in the long-term, with numerous opportunities for feedback. It also helps the process when a group of students is engaged, participating, and challenged on a regular basis.
Overview. The course content includes the text, legislative history, judicial interpretations, and policy underpinnings of the Federal Rules of Evidence, and some of the associated state law distinctions. Students learn about the major areas of evidence, from proof issues, such as judicial notice, presumptions, and burdens, to the minimum requirement that evidence be relevant, to the trial-within-a-trial of witness impeachment, to a broad array of potential exclusions, such as unfair prejudice, character, opinions, hearsay, lack of authentication, and privilege. In addition, students learn how to actually lay evidentiary foundations as lawyers.
The course is designed to provide students with a conceptual and practical understanding of the meaning and application of the rules governing the admission of evidence at trial. This includes a rudimentary understanding of how to navigate a courtroom as a trial lawyer.
As described above, there are several learning objectives of the course, including students being able to understand and apply the rules of evidence, the lawyering roles and relationships intertwined with evidentiary issues, statutory construction, and the intersection between evidence and ethics. These objectives are described below.
- Be able to use and apply the rules of evidence.
Students should refine skills in what is the gold standard in core law school courses -- the transfer of knowledge through problem solving. This process, though, is streamlined and more time-sensitive in the context of evidentiary objections at trial, leading to more “short answer” type problem solving than drawn-out essays. The process also is performative - challenging students to perform as a trial lawyer, with direct, cross and redirect examinations and to lay evidentiary foundations in the face of objections.
- Apply the rules clearly and concisely in writing.
Students should be able to express themselves in writing as well as be able to verbalize their objections to evidence and to lay evidentiary foundations.
- Recognize and become familiar with lawyering roles and relationships.
The lawyering role and important lawyering relationships are important to resolving evidentiary issues. Thus, students should be able to apply the rules of evidence in conjunction with how lawyers deal with clients, witnesses, judges and jurors in a trial setting.
- Be able to engage in competent statutory construction.
At its base, evidence law is a code course involving the interpretation of statutes. Students should be able to articulate a framework and various canons of construction while engaging in statutory analysis.
The course also hits on all three Carnegie Apprenticeships:
- The intellectual or cognitive apprenticeship.
A significant portion of the course involves the cognitive apprenticeship, including the learning-by-doing components. Students must think on their feet in the trial setting, making and responding to evidentiary objections on a regular basis. Also, student are asked to engage in statutory construction, understanding how interpretive constructs are needed for applying legislative rules. Problem-solving requires students to create expert analytical protocols about how to identify and resolve legal issues. An evidentiary analysis often requires several mental steps, emphasizing the importance of thinking ability.
- The practice-based apprenticeship.
The course revolves around the practice-based apprenticeship, using trial techniques and role-playing as primary tools by which to teach the material. In almost every class, students are divided up into small groups of three or four and assigned tasks as judges, advocates and witnesses. Role-playing also occurs with guests. For example, this past semester, our entire admissions department of three individuals testified as records custodians in a mock lawsuit involving admissions records. One group of students attempted to lay a business records foundation pursuant to Federal Rule of Evidence 803(6), a hearsay exception, another group was tasked with objecting to the foundation, and a third group played the role of judge. The class can get quite noisy and active, which is exactly the point. After all of the students practice in their small groups, I ask one group to remain standing to demonstrate the task for the entire class.
- The professional identity apprenticeship.
The professional identity apprenticeship grows naturally from the trial context. We use the courtroom for class several times each semester and students are confronted immediately with decorum and professional relationship issues. With the addition of ethical components to the course book, students directly analyze the interrelationship between evidence and ethics. In one problem, for example, students are asked if a party’s attorney can cover the costs of creating a “day-in-the-life” film about the harm suffered by an accident victim-plaintiff if the party cannot afford to pay for the film herself. This question, and the provided rule of professional conduct, helps students see that ethical issues are not compartmentalized; professional identity questions are everywhere.
Upper Level / Required
Lectures / Collaborative/Cooperative/Team Learning / Group Discussion / Simulation / Peer Teaching / Lab / Socratic Inquiry / Legal Writing
Students are required to write out answers for to up to a half-dozen problems in the course book prior to discussion in class. Sometimes, students are asked to post a problem response on the course Web platform. At other times, students are asked to collaborate in small groups after they have written responses to a problem and to create an agreed upon structure for an answer that is then written on the classroom marker-boards. With up to ten groups writing answers on the front boards, the structures can be readily compared and discussed. On occasion, I ask students to bring in current events involving evidence for classroom discussion. Students also are assigned to observe a real trial proceeding or participate in a mock trial. If students observe a trial or proceeding, they are asked to write about it and post their reaction on the Internet.
Attendance and preparation for class are required, and I expect student participation. The problem method provides many opportunities to evaluate student learning. In addition to the daily dose of problems focused on a particular area of evidence law, I recently began using an overview problem to introduce students to the course, see attached 2012 introductory problem. I also offer occasional non-graded multiple-choice quizzes for additional feedback and will ask students to post an answer to a problem on the class Web site, and then provide collective feedback to the class. I also weave into the problem line-up some released multiple choice and essay bar exam questions for students to obtain additional practice and feedback. Students also are given the opportunity to review several of my old Evidence examinations, with answer keys, and I hold periodic review classes during and after the class period, to assist students along the way. The grade in the course is based primarily on a final examination that contains objective and short-answer questions.
I try to create “feedback generative learning” to provide diagnostic and formative feedback throughout the course, either through self-assessment or from me. Feedback generative learning involves performance that can be tracked, such as through the problem method or practicing trial techniques. In addition, I offer to review a student’s answers to one or all of the assigned problems to provide additional direction and feedback, and have several informal lunch-time Evidence chats in the school lounge area each semester. Up to 15 students take me up on the offer to discuss any aspect of the course. Students also can email me their responses to problems and I will send them a reply email with feedback, including specific ways they can improve.
The course developed almost as a natural progression from my interest in engaged learning and the time I spent as a prosecutor, trying cases. When I first taught Evidence Law, I had just graduated from law school two semesters earlier and did not have a deep appreciation for course design. Consequently, I emulated others in developing the class. While I really enjoyed teaching the course, I was uncomfortable with the space given to appellate cases as compared to problems, and began to intentionally craft something different.
When teaching, I would advise instructors to have fun; it is contagious. Be transparent. Let students know what the outcomes are for the main segments of the course and how to get there. Establish by word and deed that the course is collaborative, with student participation an essential component. Keep class challenging; if it is too easy, students will split their screens and pay partial attention. Be relevant to them, using props, videos, music, and more to draw them in. And there is nothing wrong with using a good resource – the film "My Cousin Vinnie" comes immediately to mind – multiple times.
The observations of the effectiveneses of this course are direct and circumstantial. The direct observations come from student performance – in making and responding to objections and in answering problems. When students are engaged and performing, it is easier to observe their light bulbs go off. Additional direct observations arise from quizzes based on multiple choice and essay item types in class. Circumstantial observations occur from student questions in and outside of class and mini-review sessions during the semester.
I teach the course at the same time as a former chief justice of the North Carolina Supreme Court, who is using the same book and a similar active approach. In the future, we plan on having our classes compete against each other in the final course trials. I also would like to coordinate the class with people teaching Evidence in a similar manner in other schools.