Using Practical Simulations in Large Required Courses (Evidence)

written by Christian Sundquist, Albany Law School

I have taught the required course in Evidence at Albany Law School for some twelve years since first starting out in legal education. Over the years, the size of my class has fluctuated from 40 to over a hundred students (someone went on sabbatical!). During that time I have introduced a number of different teaching methodologies as my experience and confidence as a teacher grew, and as novel teaching pedagogies have been introduced.

I have always provided opportunities for my students to engage in any number of practical exercises and simulations in my courses – whether the course be Advanced Evidence, Federal Courts, or Technology, Privacy and the Law. The exercises often utilize professional actors to perform witness roles, and are geared towards cultivating core advocacy abilities, such as: trial skills, witness examination, opening and closing arguments, the presentation of evidence, client interviews and ethical considerations, appellate arguments, negotiation and legislative drafting. For example, students in my Immigration course have the opportunity to (a) interview a mock client seeking asylum (played by a professional actor) in the United States, (b) perform attorney roles during a two-day mock removal (a.k.a. deportation) hearing involving professional actors, and (c) work in teams to draft a legislative immigration reform initiative. Similarly, when I taught Federal Courts students were expected to (a) represent a mock client at the pre-trial stage in a simulated federal action (including perfecting service of their drafted motions for summary judgment), (b) engage in appellate arguments on matters of justiciability and federalism, and (c) examine witnesses (performed by professional actors) during a simulated Section 1983 civil rights case.

I have found that integrating experiential learning opportunities in class have led to significantly improved learning outcomes for students. Students are simply more engaged, more energized, and more passionate about learning when they are asked to apply the legal doctrine and theory they have learned in class to practical scenarios. The difficulty, of course, has been providing opportunities for students in LARGE classes to practically apply the material in a meaningful way, without detracting from the breadth of the lesson plan.

Back to the basic Evidence course: while I have always employed a variety of teaching methods in class (including, inter alia, class discussion and questioning, case analysis, problem-solving using hypotheticals, writing exercises involving draft motions in limine, and demonstration exercises using a few students to illustrate basic trial concepts), I have usually shied away from integrating full-scale practical exercises due to the sheer size of the class.

Last Fall was different.  While my class size was still fairly large (at around 45 students or so), I decided to provide ALL students with the opportunity to apply the law and policy they learned in class through a series of “practicums” focusing on high-profile cases.  For example, one such practicum focused on the complex character evidence issues stemming from the Bill Cosby prosecution (now, of course, he has been convicted!), another focused on the interesting relevance issues presented during the Conrad Murray (physician of Michael Jackson) prosecution, and two other exercises focus on hearsay and forfeiture doctrine issues presented by other famous recent cases.  In terms of methodology, I created case files for each “practicum” (containing, for example, instructions for the practicum, copies of pleadings, deposition transcripts, etc..) and also assigned relevant casebook readings, secondary materials, and Rules from the Federal Rules of Evidence where appropriate. During each practicum, approximately 3 to 5 students were assigned to one trial team (e.g., Prosecution, Defense, etc..), such that between 6 to 10 students had active attorney roles to perform during each exercise.  Another 2 to 4 students would serve as mock judges during each exercise (some of the exercises took the form of a pre-trial motion in limine hearing, others took the form of appellate arguments, and so forth).  Each simulated practicum would last approximately one hour, with the remaining 40 minutes of class devoted to a group discussion of the legal issues (students that did not serve as “attorneys” or “judges” during the exercise were required to help lead discussion during this segment). Notably, class participation (which included participation in the practicums) was graded in the course (with the syllabus including a rubric for assessing performance).

The results of my “experiment” were generally quite positive.  Similar to my other courses, I felt as a greater percentage of the class had a stronger understanding of core legal concepts following the practicums (such as hearsay, character evidence, and relevance).  I believe my students were excited to take part in the practicums, and appreciated going through a novel way of learning the material (beyond the normal class discussion, student questioning, and working through problem sets).  A number of my students commented during and after class that they were more practical learners, and that the exercises helped them finally understand evidentiary concepts that hitherto had been eluding them!

That said, employing practical exercises in such a large class had its limitations as well.  First, I learned after the fact that some the “non-active” students (who were not performing attorney or judge roles) were less engaged in classes that were devoted to “practicums,” despite the course requirement that the lead discussion during the second part of such exercises.  The next time I use “practicums” in the Evidence class, I will likely require each non-active student (or small groups of students) to submit a reaction memo to the exercise as well (but I welcome other suggestions!).  Second, the use of practicums had a small negative impact on the breadth of subjects we were able to reach during the semester.  I would always assign not only the “Practicum Case Materials” as homework in advance of an exercise, but also additional case readings on concepts we hadn’t reached yet in class.  Discussion during the second half of the practicum (e.g., the last hour of class) would then be devoted to not only analyzing what occurred during the exercise, but also addressing how the new case readings applied (or didn’t apply) to the case file at issue.  The next time I integrate such full-scale practical exercises in Evidence, however, I plan on “flipping the classroom” in advance of each practicum to ensure a broader coverage of evidentiary subjects.  That is, I plan on assigning a pre-recorded video lecture of any new material in advance of a scheduled practicum that summarizes any new concepts or rules raised by the readings.  My hope is that by doing so students will be more comfortable with the material, and that the class discussion following the exercise will be much improved.

All in all, I believe that integrating a series of involved practical exercises in a large, required course was a success.  My experience perhaps wasn’t perfect the first time around, but I look forward to making some tweaks to my teaching methodology and trying again next Fall! The success of using “practicums” in the basic Evidence course, however, may have had one unintended consequence: my Fall 2018 Evidence course is oversubscribed with nearly 80 students and a long waiting list!  Back to the drawing board….

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