Writing Assignments in Evidence Courses, a Guest Post by Kevin Lapp

As I said before,Evidence strikes me as an ideal second-year course to incorporate skillsexercises into the curriculum, so that students don’t just learn the rules, butlearn how practicing lawyers prepare for and resolve Evidence law issues. Aidedby the problem-based approach of many Evidence textbooks, it’s quite easy inthe classroom to provide students with the facts of a case and some proposedtestimony and to then have one or more students argue for the admissibility ofthe testimony while others argue for exclusion. This gets them to do theimportant work of applying the rule they’ve just learned, has the benefit ofthem doing so while in role as a lawyer with a particular goal, and ensuresthat they hear and consider both sides of the issue. 

Yet, while manyevidentiary issues arise in the middle of witness testimony, and require the quick-thinkingobjections and oral argument skills that can be developed via classroomdiscussion or exercises, a lot of evidentiary issues are resolved pretrial viamotions in limine. And it is quite a challenge to include legal writingexercises in the Evidence course curriculum for a host of reasons. But I thinkit is a challenge that deserves to be confronted and overcome. Simply put, nostudent should leave an Evidence course without having drafted a short motionin limine.

There are several reasonsfor including a motion in limine assignment (beyond the fact that they are aimportant component of actual practice).

First and foremost, they requirestudents to spend more than just a few minutes pondering the admissibility of proposedtestimony. I have found that classroom problems come in two flavors: the easyones that clearly illustrate the rule at work, and the hard ones that seem justas likely to go one way or the other. And while the hard problems allow forimportant discussions of the nuances and purposes of the rules, it’s not clearthat all students truly engage with the hard problems. The writing assignmentwill make sure that students thoughtfully consider and articulate supportedarguments for a particular result in a “hard” problem, ideally engaging withthe text of the rule, the Advisory Committee notes, and some caselaw.

Another benefit is morestrategic from the student’s perspective: it will help them prep for thecourse’s final exam and for an Evidence essay on the bar exam. It’s folly tospend a semester in the classroom conducting oral discussions about the rules,and then to test our students via multiple choice and written essays. Byrequiring them to submit a written analysis of an Evidence issue, they getpractice doing what they’ll be expected to do for evaluation. This connects toa third benefit: it provides the professor with an opportunity to offer studentsfeedback so that they know before they get their final exam results whetherthey are approaching and understanding the material correctly. Finally, theassignment can work as a nice mid-semester review of the material already coveredin the reading and classroom, especially if the professor takes 5-10 minutes inclass after reviewing the assignments to offer generalized feedback.

My planned writingassignment will build off our Day-One exploration of potential evidence in theGeorge Zimmerman murder trial. I intend to ask my students to write 2 shortmotion in limine arguments: one will address a character issue, and the otherwill cover hearsay. The students will be randomly assigned to either theprosecution or the defense. Their available law universe will be limited – thisisn’t a research exercise, it’s a writing exercise. The students will be ableto use the text of the rules, the Advisory Committee Notes, and 2-3 short casesof my choosing. And it will be assigned and due at the end of our units oncharacter and hearsay.

Several issues remain tobe resolved.

• How long will be writing assignment be? I’mthinking 3 pages maximum. Given the limited case universe, and the pedagogicalaims, I don’t see any value in making it longer.
• How much feedback do I provide? Enough to showthem I have thoughtfully considered the students’ work and to offer tips thatwill improve their legal writing and give them a chance to score better on theexam.
• Will it be graded or ungraded? I will not gradethe assignment, in part out of an uncertainty as to what the appropriate rubricwould be for a writing assignment within a doctrinal course. Making it ungradedmeans that some students might resent the necessity of devoting time to anungraded assignment. I tend to think this concern is overblown. At NYU, Itaught a year-long course to first-year students that was pass/fail, and onlyrarely did I get the sense (or actual reports) that the pass/fail natureaffected 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’mconfident the majority of students will find it worthwhile.

As always, I’d love tohear from those who have used similar assignments in their courses.