By Associate Professor Kevin Lapp
This is one of a series of guest posts on teaching Evidence at EvidenceProf Blog.
As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.
Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).
As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don't just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it's quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they've just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue.
Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.
There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).
First and foremost, they require students to spend more than just a few minutes pondering the admissibility of proposed testimony. I have found that classroom problems come in two flavors: the easy ones that clearly illustrate the rule at work, and the hard ones that seem just as likely to go one way or the other. And while the hard problems allow for important discussions of the nuances and purposes of the rules, it's not clear that all students truly engage with the hard problems. The writing assignment will make sure that students thoughtfully consider and articulate supported arguments for a particular result in a "hard" problem, ideally engaging with the text of the rule, the Advisory Committee notes, and some caselaw.
Another benefit is more strategic from the student's perspective: it will help them prep for the course's final exam and for an Evidence essay on the bar exam. It's folly to spend a semester in the classroom conducting oral discussions about the rules, and then to test our students via multiple choice and written essays. By requiring them to submit a written analysis of an Evidence issue, they get practice doing what they'll be expected to do for evaluation. This connects to a third benefit: it provides the professor with an opportunity to offer students feedback so that they know before they get their final exam results whether they are approaching and understanding the material correctly. Finally, the assignment can work as a nice mid-semester review of the material already covered in the reading and classroom, especially if the professor takes 5-10 minutes in class after reviewing the assignments to offer generalized feedback.
My planned writing assignment will build off our Day-One exploration of potential evidence in the George Zimmerman murder trial. I intend to ask my students to write 2 short motion in liminearguments: one will address a character issue, and the other will cover hearsay. The students will be randomly assigned to either the prosecution or the defense. Their available law universe will be limited - this isn't a research exercise, it's a writing exercise. The students will be able to use the text of the rules, the Advisory Committee Notes, and 2-3 short cases of my choosing. And it will be assigned and due at the end of our units on character and hearsay.
Several issues remain to be resolved.
Another benefit is more strategic from the student's perspective: it will help them prep for the course's final exam and for an Evidence essay on the bar exam. It's folly to spend a semester in the classroom conducting oral discussions about the rules, and then to test our students via multiple choice and written essays. By requiring them to submit a written analysis of an Evidence issue, they get practice doing what they'll be expected to do for evaluation. This connects to a third benefit: it provides the professor with an opportunity to offer students feedback so that they know before they get their final exam results whether they are approaching and understanding the material correctly. Finally, the assignment can work as a nice mid-semester review of the material already covered in the reading and classroom, especially if the professor takes 5-10 minutes in class after reviewing the assignments to offer generalized feedback.
My planned writing assignment will build off our Day-One exploration of potential evidence in the George Zimmerman murder trial. I intend to ask my students to write 2 short motion in liminearguments: one will address a character issue, and the other will cover hearsay. The students will be randomly assigned to either the prosecution or the defense. Their available law universe will be limited - this isn't a research exercise, it's a writing exercise. The students will be able to use the text of the rules, the Advisory Committee Notes, and 2-3 short cases of my choosing. And it will be assigned and due at the end of our units on character and hearsay.
Several issues remain to be resolved.
- -How long will be writing assignment be? I'm thinking 3 pages maximum. Given the limited case universe, and the pedagogical aims, I don't see any value in making it longer.
- -How much feedback do I provide? Enough to show them I have thoughtfully considered the students' work and to offer tips that will improve their legal writing and give them a chance to score better on the exam.
- -Will it be graded or ungraded? I will not grade the assignment, in part out of an uncertainty as to what the appropriate rubric would be for a writing assignment within a doctrinal course. Making it ungraded means that some students might resent the necessity of devoting time to an ungraded assignment. I tend to think this concern is overblown. At NYU, I taught a year-long course to first-year students that was pass/fail, and only rarely did I get the sense (or actual reports) that the pass/fail nature affected student effort. More importantly, if the exercise is constructed well, in that it has a skills and content payoff that the students clearly recognize, and if the assignment provides them with meaningful and helpful feedback, I'm confident the majority of students will find it worthwhile.
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