Best Practices for Legal Education

The conversation that follows reminds me that when we, those supportive of the Best Practice model, use words like “innovation” and “engagement,” what we really mean is effective innovation and efficient engagement. When venturing away from the traditional delivery methods in the name of engagement and innovation, the most effective and efficient delivery methods must be accompanied by clearly articulated educational goals.

On a Tuesday afternoon, early in the new semester, Professor Hillary Farber posted a short and direct question to the Law Clinic Listserv. She asked, “Does anyone have any good discussion questions for this film [12 Angry Men] you would be willing to share?

 These are the responses that were shared:
(please feel free to add your own comments)

 “I use the film [12 Angry Men] in both Negotiations and Trial Practice. 

In the negotiation class, I have my students pick one of the jurors and discuss his negotiation strategy, style and tactics.  I ask what was effective, what was not and why.  We analyze what was said in the jury room and identify the “underlying needs” of each party (and whether those are “legal” or “nonlegal” concerns).

 In the Trial Practice class, we try to “recreate” the trial and imagine what each lawyer thought was most important for the jurors to hear.  We discuss why the jurors thought that the defense attorney did not do a good job and what the lawyer should have done to make the jury empathetic.  We discuss how the trial might look today, with scientific evidence available.

 In both classes, we discuss the impact of the all male jury.  Did gender affect the deliberations?  The outcome?  How?  What would have changed if there had been women on the jury?  What about economic or educational class?  How did that play out in the jury room?  Among the members of the jury?  Between the jurors and the defendant?  What about race and ethnicity?  Who would you want to have on your jury?  Who would you challenge?  What impact might there be on pre-trial negotiations?

 Hope this helps.  I love the film!

                     –  Professor Laurie Shanks, Albany Law School
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In regard to all films used to teach legal technique, I think it is always necessary to ask “How much of this is Art?” – for the purpose of pointing out that the actions taken by characters and the results thereof are used by authors/directors/etc. for the purposes of the drama or comedy (e.g., My Cousin Vinny—very funny, but it makes the process of becoming a good trial lawyer look WAY too easy).  The reactions of actual human beings to given situations may in fact vary.

Anything where you use a movie for the purpose of saying, “see, when you do X, Y happens” falls victim to this fallacy—in art, the author is always in control. 

Consider the scene in To Kill a Mockingbird where Atticus Finch faces down the crowd coming to lynch Tom Robinson.  A powerful scene that works dramatically both in the novel and in the film because Harper Lee (in the novel) and the screenwriter, director and actors (in the movie) convince us that it could happen that way.

Yet I can’t help thinking that if a similar scene were played out a dozen times in life, it would work out like in the movie once or twice.  In the majority of cases Finch would have been shoved aside and Robinson lynched.  In a few cases Finch might have been lynched along with Robinson.  And in one of them, Scout would have been raped too. 

               –  Professor Kenneth S. Gallant, University of Arkansas Little Rock
                  [aka The Bringer of Cold Water]…………………………………………………………………………………………………………..

I will be using clips from Philadelphia movie in client interviewing segment of clinics this semester.  

Taking a page from Hillary Farber’s e-mail, does anyone have any good discussion questions about interviewing for these movie clips that you would be willing to share?……………………………………………………………………………………………………….

In my view, interviewing technique is particularly dangerous to teach through movies, for reasons similar to those stated in my note about 12 Angry Men:

The interview in storytelling is generally about exposition of story background and development of relationships between characters.  It is always as successful/unsuccessful as the author wants it to be for these purposes, and not because the author, director and actors are actually trying to reproduce typical interview questions and responses.  An interview in a movie is almost always much shorter than an interview in life.

The suggestion that you will get good results by doing what the successful lawyer-character does is thus particularly questionable when it comes to interviewing.

             – Professor Kenneth S. Gallant, University of Arkansas Little Rock
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Though I have often used movie clips in teaching, I also have been troubled by the possible confusion that can be created between art and reality, so Ken’s comments kind of resonate. 

 On the other hand, good dramatic film clips can be great teaching tools so there is no real reason to stop using them–just contextualize them for the class (this itself can be a useful discussion–e.g.. how might this event play out differently in a real interview (or if you were the lawyer)?).   As to interviewing, clips probably work best to show examples of specific techniques or to have streamlined access to key dynamics in the relationship (which might take a while to develop in a real interview). 

 I doubt that trial advocacy teachers would suggest that the 60 second closing argument in a Law & Order episode is realistic as far as technique, but it can be used to make some useful points when put in context.

              – Professor Robert Seibel, California Western School of Law
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I think Philadelphia is great for DIRECT of Tom Hanks (sets a good theme: justice), CROSS (good on tone when crossing a vulnerable person and it is damaging) and RE-DIRECT.  This is the best example I have found for a really powerful re-direct. I also like the opening arguments in Philadelphia.

 I have not developed discussion questions, but if you want to chat about using Philadelphia, please feel free to give me a buzz.

              – Professor Samantha Buckingham, Loyola Law School
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 I don’t use 12 Angry Men to teach legal technique.  Rather, I find it a useful vehicle to discuss negotiating strategy, style and tactics in my negotiations class and jury/group dynamics in my trial practice class.  Perhaps more importantly, it is a great springboard for a discussion of race, gender and class.  I find that many students are reluctant to acknowledge the impact of these factors in negotiations and trials and are more comfortable with a “conspiracy of silence” wherein they all pretend that they don’t notice any such differences.  The film demonstrates that their jurors (and clients, witnesses, and adversaries) aren’t in on the game and will, in fact, bring their preconceived ideas into the negotiation or jury room. 

Bringing more cold water onto my head, I need to admit that I also have my students watch My Cousin Vinnie.  My experience is that the majority of law students think that cases are decided on legal principles and that their preparation for trial should be devoted in large part to learning the law.  I use the film to point out that, in a given trial, the lawyer may win or lose based on going to the scene, interviewing witnesses, taking pictures and, perhaps, learning the intricacies of slip differentials. 

                 – Professor Laurie Shanks, Albany Law School

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 [To:] Laurie (and the list),

By the way, your purpose for using My Cousin Vinny–to make the point that fact investigation is vital–seems to me right.  That movie is hysterical, and my only real problem with it is that it makes both the investigation and the courtroom work of the lawyer seem too easy, as I’ve already said. BTW, “Vinny” is a great contrast to “Mockingbird.”  Atticus’ flaw as alawyer is that he doesn’t do fact investigation of Tom Robinson’s case, as far as we can tell.

I disagree with you on one point–when you say that you use 12 Angry Men to teach negotiating strategy, I suggest that you ARE using it to teach the techniques of what lawyers do–plotting negotiation strategy is a key skill of both the litigator and transactional lawyer.  Thus, I think it’s critical to raise what I’ve dubbed the “art” issue–can you rely on the success or failure of negotiation strategies in the movie as reflecting much about the real world of negotiation, or do the successes and failures “merely” reflect the artistic needs of the movie?

OK, so now, I think I can come around to the view of some folks in this discussion, while preserving my skepticism:

I do agree that a movie can reflect things that might be done in the world. We can discuss whether a cross-examination asks the right questions, whether a negotiation plan accounts for likely outcomes, etc. What I will insist that we can’t do is take the success or failure–or any reaction–to the lawyering act we are examining at face value.  We always have to keep in mind that the reaction is done in service to the overall work of art.  Even if the author/director/actors have convinced us that the characters would react in the way they do in the story/film/play/TV show, students need to consider how different persons might react differently to the lawyering act in question.

             – Professor Kenneth S. Gallant, University of Arkansas at Little Rock

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 Ok, I can’t resist.  One thing I like to do with My Cousin Vinnie is redo his re-cross of the state’s expert and show what would REALLY happen if you gave him the chance to comment on Vinnie’s girlfriend’s testimony (HINT: I have never seen an expert say, “Gosh, I guess I got it wrong” in a real trial.  Doesn’t happen).  One of the problems with movies is that, as Ken points out, things work beautifully that would NEVER work in real life, and students watching think, “Oh, that’s how it works”, and then they are [misled].

             – Professor Jennifer L. Wright, University of St. Thomas School of Law
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 I’ve enjoyed this exchange.  I’d like to make two points.

#1.  Students have already watched movies about lawyering and used them to form their schemas about things.  It is useful to show and discuss movies to de-brief and disabuse students of some false notions they may have about lawyering.

#2.  While court-room examinations on film may look SOMETHINK like real life (because of the structure of an examination) CONVERSATIONS I film look NOTHING like real conversations.  Actors don’t say “Um”, don’t self-correct, etc. etc). It is CRUCIAL in teaching interviewing, counseling, and negotiating to show REAL people engaged in these conversations.  Otherwise students come away with a mistaken notion that their conversations with clients and lawyers should look like TV dramas. Doing research in conversation analysis, using recordings and transcripts of actual role plays or live interviews really drives home the point that conversations do not look anything like the movies.

                – Professor Linda F. Smith,
S. J. Quinney College of Law University of Utah
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 I’m writing to suggest yet another option from the asylum field.  A big part of using movies in class is simply having some show and tell to liven up class.  Much of the critique in this string is that movies are not realistic.  Over ten years ago, two documentary film makers produced “Well Founded Fear,” which went inside the US asylum offices and filmed actual adjudications in progress.  The result was a two hour documentary.

As a follow-up to the film, they produced two training videos from the outtakes.  While much of the footage is about the adjudication process and the stories of applicants, there is a lot of useful footage on the attorney/client interviewing process, how to use (and not use) interpreters, etc.  They consulted with practicing attorneys and clinicians as they edited the films, so you get the technical filming and editing skills of a movie producer mixed with insights from clinicians about what would be useful to train attorneys.  The clips range from three or four minutes to about 30 minutes.

In the interest of full disclosure and self-promotion, in one extended vignette, a younger version of me and an interpreter colleague are shown preparing a client for an asylum interview – the client, of course, gave informed consent.  I have thought the prep was pretty good, and have used it in my classes.  Last semester, two other faculty used parts of the clip in a 1L class.  It was enlightening to have a 1L comment to me as I passed her in the hall way “Hey, Professor Wiebe, we saw in class how you screwed up that interview.” (My solace is that winning the case covered whatever missteps we made.)

In any event, my basic point is that the resource combines high production values with real life action.  And it comes with a facilitators guide!

From the website for the film (now available in DVD):
“Well-Founded Fear Discussion Modules: Practicing Asylum Law”
This video is geared especially toward the needs of advocates, legal professionals and their clients offers concrete examples for discussion and analysis, along with notes and commentary by experts and Asylum Office insider. http://www.wellfoundedfear.org/ss/products

                – Professor Virgil Wiebe, University of St. Thomas School of Law
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While I have my own questions about using movies to teach technique, I have no doubt about the role of movies and other art in moral education.  The scene in To Kill a Mockingbird in which Scout shames the would be lynch mob is the emotional center of my mawkish last class of the semester.  

And try playing Banks of the Ohio before you teach manslaughter in criminal law.  Click here to watch and listen to this song on YouTube.
YouTube has 44 “murder ballads.”  
 
I don’t have a full blown theory but I am thinking that recognizing emotions in our classroom, and in our work more generally, is an important part of strengthening the apprenticeship of identity and purpose.  

And the scene chokes me up every time.  

            –  Professor Ian Weinstein, Fordham University School of Law

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