Thursday, October 31, 2013

In Teaching Evidence, Making the Case for Cases

By Associate Professor Kevin Lapp

I've previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.

First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It's much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren't relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule's application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).

But there are downsides to teaching by problems. Perhaps the biggest one I've identified thus far is that my students do not get the benefit of reading a judge's organized analysis of a particular legal issue. For all their warts (which themselves can be teaching tools), judicial opinions provide models for legal analysis. They typically start with the facts, outline the relevant law (including its rationale), and then apply the specific words of the law and the underlying rationales to the facts. It's often exactly what I want my students to learn how to do. And while our class discussions about problems involve the students identifying the relevant rule and its elements, and then making arguments about the proper application of the law to the facts, the result is rarely so clean. A student may jump right to the conclusion without explaining how she got there, a student may begin with a justification (I think it should be kept out because it's not reliable) without deciding whether it was even admissible, or a student may fumble with the specifics of the applicable rule. There are, of course, teaching techniques to deal with these situations, if not reduce their occurrence. But the legal analysis we conduct in class for a problem is rarely as organized as a judicial opinion.

And that's the biggest advantage I'm discovering to using judicial opinions. Having the students state and apply the law without reading cases leaves students without models for good legal analysis. Because good legal reasoning (be it writing or oral advocacy) comes not just from practice with problems, but also from reading and hearing good examples of legal analysis, one big benefit of assigning judicial opinions is that the students are able to see an organized application of a given rule to a set of facts. That this is done as the students are first getting to know the terms of a particular rule and its rationale has me convinced that reading cases is even more valuable.

There are plenty of others benefits to using cases, such as allowing me to introduce the students to individual judges (and thus remind them that the law is applied by humans who had prior experiences before they came to the bench, and who decided other cases, etc., etc.) and giving them authority that they can reference throughout the semester.

The upshot of this is that I've found myself slowly gathering case excerpts and assigning them as supplemental reading, not because I think the factual scenarios of the cases provide particularly excellent starting points for learning the rules (I almost universally think that my problems are more finely tuned as instruments of teaching the content of the law) but because I am recognizing the benefit that my students get from the example of the judge's analysis.

One question that lingers - is it better to have the students read 3-4 short cases, or 1 case with a richer discussion/analysis? Would it be better to find cases that I can assign in their entirety, or are case excerpts acceptable? As always, your insights are welcome.

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