Two Models for Trial Advocacy Skills Training in Law School—A Critique

Loyola of Los Angeles Law Review Volume 25 Number 1 Article 4 11-1-1991 Two Models for Trial Advocacy Skills Training in Law School—A Critique Gilda Tuoni Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Gilda Tuoni, Two Models for Trial Advocacy Skills Training in Law School—A Critique, 25 Loy. L.A. L. Rev. 111 (1991). Available at: https://digitalcommons.lmu.edu/llr/vol25/iss1/4 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. TWO MODELS FOR TRIAL ADVOCACY SKILLS TRAINING IN LAW SCHOOLS-A CRITIQUE Gilda Tuoni* I. INTRODUCTION The prosecutor asked the ex-police officer, who was now a defendant on trial for first degree murder, to demonstrate to the jury how he had carried his off-duty weapon the day he shot the victim. The defendant stood up and put the gun, State's Exhibit No. 1, in his trouser waistband. The defendant previously had testified that, on the day in question, he had resigned from the police force, put his off-duty gun in his waistband as usual, and gone to see the victim, the woman with whom he was liv- ing. The defendant had claimed that the shooting was accidental, that he had no intent to harm the victim, that she had grabbed the gun from him and it had discharged during a struggle. He had also testified that he had kept the gun in his waistband the entire time he had driven from the police department to the victim's place of work and while he sat down and waited for her as well. The defendant said that he had never re- moved the gun from his waistband and that, to his surprise, the victim grabbed it at the time of the incident. The defendant stated that he even forgot that the gun was on him. After the defendant demonstrated to the jury as requested, the prosecutor thanked him and asked him to be seated. The defendant took the gun out of his waistband and sat down. The prosecutor interrupted him: "Sir," he said, "please keep the gun in your waistband." The defendant responded, "Oh, it's not comfortable for me to do so. When I sit down, I take it out." For a moment there was a stunned silence in the courtroom. The prosecutor, with emphasis, repeated the defendant's statement in an in- quisitive way. The defendant first looked startled, then stared at his counsel who buried his own glance in the notes he was taking. The defendant, looking uncomfortable and squirming in the witness chair, fi- * Associate Professor of Law, Loyola Law School, Los Angeles; B.A., 1973, University of New Mexico; J.D., 1976, Boston College Law School; LL.M., 1980, Harvard Law School. The author would like to thank her former research assistants at Northeastern University School of Law, William Hulsey and Michael Maxwell, for their research help in the initial stage of this Article. Professor Samuel H. Pillsbury of Loyola Law School helped the author considerably in thinking through the latter stage. LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 25:111 nally responded: "Well, my pants are a little tight today, so today I have to take the gun out of my waistband." This courtroom dialogue did not result in the conviction of the defendant. Nor did it end in acquittal. Rather, the scene was played out among law students in a trial advocacy course in the simulated courtroom setting of a classroom. The student playing the role of prosecutor had, in effect, scored a solid victory by conducting a very successful- literally disarming-cross-examination of the defendant. Later, the student in the role of the defendant, feeling rather sheepish, congratulated the prosecutor-his classmate-on a job well done. The courtroom judge-the law professor-critiqued this and other student perform- ances, scheduled a videotape review session, and dismissed the class. Such simulated trial scenes are common on law school campuses today. A trial advocacy course is likely to be found in the curriculum of every accredited law school in the United States. Indeed, the use of sim- ulation-putting the students in the position of advocate in the courtroom-appears to be an effective, if not the most effective, way in which students can develop advocacy skills.' Although the general content of trial advocacy courses is often simi- lar, the manner in which such courses are conducted is not.2 This Arti- cle focuses on these varying structures and addresses the two different but predominant models for teaching trial advocacy skills in the law school curriculum: the semester approach and the intensive approach.' The Article critiques these two methods, considering the benefits and dif- ficulties involved in teaching each model, as well as issues attributable to teaching trial practice in either form. These views are based, in part, on a 1. For commentary on the value of simulated exercises, see Ralph S. Tyler & Robert S. Catz, The Contradictionsof Clinical Legal Education, 29 CLEv. ST. L. REv. 693, 694 & n.5 (1980) (arguing that law schools should rely on simulated exercise rather than "live client" cases); see also Steven Lubet, What We Should Teach (But Don't) When We Teach TrialAdvo- cacy, 37 J. LEGAL EDUC. 123, 124-25 (1987) (arguing that simulated exercises are among "the most advanced teaching methods used in any law school course," and should be part of law school curriculum). 2. See infra note 6 and accompanying text. Some schools offer both intensive and semester-long trial advocacy courses. Richard B. Collins, The University of Colorado School of Law's Course in Intensive Trial Advocacy, Purposes, Content, and History (Jan. 1986) (on file with Loyola of Los Angeles Law Review). This approach is based on student scheduling rather than pedagogical preference. Id. 3. Many law schools, including University of California at Berkeley School of Law, Bos- ton College Law School, Loyola Law School, Los Angeles, Northeastern School of Law, the University of Southern California Law Center and Stanford Law School, offer only semester- long courses in trial advocacy. University of California at Los Angeles School of Law offers trial advocacy courses on a year-long basis while the University of Colorado School of Law and Harvard Law School offer both intensive and semester-long trial advocacy courses. November 1991] TRIAL ADVOCACY SKILLS TRAINING review of the growing body of literature on the teaching of trial advocacy-both "how to" primary sources and commentaries. The thoughts expressed herein, however, have primarily evolved out of courses taught by the author at a number of law schools, continuing legal education courses, and personal experiences as a litigation lawyer.' II. BACKGROUND Trial advocacy is a course geared to enable law students to develop skills necessary to become effective trial lawyers. As discussed in greater detail infra,5 the scope of such a course usually is geared to the methods by which lawyers conduct trials. Teaching emphasis is placed on pre- trial preparation and, in particular, on in-trial performance. There are two widely used approaches for teaching law school trial advocacy courses. The semester approach consists of approximately thirteen to sixteen weeks of instruction in trial practice. This is the tradi- tional method by which trial practice has been taught. The intensive approach is conducted most often over a ten-day to three-week period. This approach, to a large extent, is modeled after the National Institute of Trial Advocacy (NITA) program of continuing trial advocacy instruction for lawyers.' III. ANALYSIS A. The Semester Approach A semester course in trial advocacy usually consists of two-to three- hour class meetings held once or twice each week for approximately thir- 4. In particular, the author's views are based on teaching experiences in trial practice courses at Boston College Law School, the University of Colorado Law School, Northeastern University School of Law, Harvard Law School and Loyola Law School, Los Angeles. The assessment of instruction in continuing education trial advocacy courses comes from the author's work in several courses for lawyers based on the National Institute of Trial Advocacy (NITA) method of instruction. The author has also practiced law as a litigator in Boston, Massachusetts for several years. 5. See infra text accompanying notes 53-57 for a discussion of skills training in trial advocacy courses. 6. For a history and description of the NITA approach, see Kenneth S. Broun, Teaching Advocacy the N. TA. Way, 63 A.B.A. J. 1220, 1220-23 (1977). The NITA approach to trial advocacy is an adaption of classical educational theory-learning by doing. Id. at 1220. It is a highly intensive program that relies heavily on performance and critique, with just enough demonstration and lecture to round out the student's experience. Id. The NITA approach has broader significance than that of intensive or short-term trial advocacy training. When the term "NITA approach" is used in the trial practice literature, the reference generally is to teaching trial advocacy by means of the use of simulated materials, largely pioneered by NITA. Edward J. Imwinkelried, The Educational Philosophy of the Trial Practice Course: Reweaving the Seamless Web, 23 GA. L. Rnv.

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