Evidence Day 1, the Second Hour: A Guest Post by Kevin Lapp

I teach a 4 credit course that meets twice a week. Idescribed earlier what I do in the first hour. This post covers the second hour. At thebreak, I distribute 3×5 cards and ask students to put on it their name,hometown and what it is famous for, and what their dream job would be. Myadministrative assistant will then attach pictures to the 3×5 cards, and I’vegot myself a little bit of information about my students that might help medown the line.

I begin the second hour with class rules, and then pull upon the screen a cartoon that has a lawyer telling a reporter “the proof was inthe pudding, but the pudding was ruled inadmissible as evidence.” I ask why wewould ever do such a thing. A discussion of the purpose of the rules ofevidence follows, linked back to the evidence we discussed in the firsthour.  Having established that the rulespromote accuracy, efficiency, fairness and serve external interests viewed associally useful by excluding some otherwise relevant information, we spend theremaining time on trial mechanics, including FRE 611 (order of proof, scope oftestimony, mode of questioning), 614, 615 and 103 (preserving error).

I do this because one of the bigger challenges of teachingEvidence, or any law school course to first and second year students, is thefact that a good majority of them haven’t taken a case from beginning to endand haven’t been in a courtroom for more than a couple of hours. As such, theylack a basic understanding of trial mechanics. Without that framework, much ofthe moving parts and considerations that complicate evidentiary issues can beeasily lost on them. So it’s my hope that by addressing trial mechanics early,and often, my students will more quickly be able to situate the problems wediscuss in class within the lawyering and litigation context in which theyarise.

Ideally, by the end of the first day, I‘ve accomplished afew things. (1) My students have heard, and pondered, things like relevance,personal knowledge, prejudice, hearsay, experts and privileges, all tied to afamiliar fact pattern. (2) They have participated in a discussion about thisstuff, whether in a small class or by volunteering during a class-widediscussion, articulating and listening to reasons for and against the admissionof evidence. (3) They’ve been introduced to the basic structure of ouradversarial system of resolving disputes, and have begun to understand that therules of evidence are intimately linked to our process of proof.

One thing I don’t do that intrigues me – I don’t do asubstantive overview of the entire semester in 20-60 minutes. I have acolleague who teaches his entire first-year course in 2 days, and then uses therest of the semester to expand on, refine and critically analyze the contentsof that 2 day lecture. I really like the idea of laying it all out there at thebeginning. Such a method seems well-suited to helping the students master thecore material, and gives them front-end context with which they can take in andassess the details and nuances of the rules we learn. It also lets me flagissues or themes that are important to mastering the material right from thestart. Does anyone do anything like that? How about distributing the semester-endreview powerpoint the first week? Curious to hear thoughts on this.