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On Thursday evenings during the fall 2011 term, Montgomery County (Ohio) Common Pleas Court Judge Barbara Gorman ’77 could be found in her courtroom with earnest advocates, unusual juries and a serious matter to be determined.
The serious matter was the education of a group of men and women who this year are law students and next year will likely be practicing attorneys. On these Thursdays in this section of Civil Trial Practice, they were learning what it means to practice law. They were learning by doing. And as they were doing, they benefited from having what they did seen from three perspectives.
One was the perspective of Thomas P. Whelley II ’77, who as team-taught the class with Gorman for more than two decades. A partner in Dayton with Dinsmore & Shohl in its litigation department, Whelley brings to class the perspective of a trial lawyer, an advocate whose goal is to use his knowledge and skills to persuade the jury. So he advised these students, as he does each year, “You can do anything in the courtroom that is not illegal, immoral or unethical.”
He also each year points out to them that Gorman brings a different perspective, that of gatekeeper, of protector of the jury. “I care who wins,” he told them. “She doesn’t.”
And the students, as they practiced their future roles as lawyers, had a jury of their peers, of sorts. The jury box housed other students in the class, so they were definitely peers. But they were not functioning as a jury in deciding who won or lost but rather helping their classmates learn.
In the first week of class, the students make what Gorman called “a sort of opening statement.” Besides gaining information about the students they will be teaching, the two professors learn something of the state of the class members’ skills at the beginning of the term. The last class simulates a trial.
“The transformation is amazing,” Gorman said. As the course develops, students progress beyond their opening statements to direct examination, cross examination, examination of expert witnesses, etc. Other practitioners bring their experience to add to Gorman and Whelley’s.
“There’s not much lecturing,” Gorman said. “We tell them what to read. They do the exercises.
“And the next year, they are in court.”
But this year they were in class, trying to come up with an answer to the question of “how do you do this persuasively in front of a jury,” Whelley said.
They pursued that answer each week, step by step, doing individual exercises — presenting evidence, examining witnesses, using experts. Students not involved in the exercise of a particular week sat in the jury box.
With years of studying law behind them, “they differ dramatically from a real jury,” Whelley said. “So I tell them to remember what it was like before they started to study law.”
In addition to not having the same level of legal knowledge as a real jury, they do not function as a jury does but rather give input on what may or may not be successful.
Gorman and Whelley stress positive criticism.
“Question No. 1 to our ‘jury,’” Gorman said, “is ‘What did you find persuasive?’”
Whelley’s experience in practicing law has impressed him with “the genius of the jury system,” with the competence of juries in making decisions in line with the quality of persuasion they encounter.
“I’ve never won or lost a case I couldn’t explain,” he said. “Runaway juries are the vast exception.”
The burden is on the lawyer to argue clearly and persuasively. “The lawyer’s responsibility,” Whelley said, “is to explain complex legal issues in layman’s terms. I haven’t encountered many legal issues that can’t be explained.”
What a lawyer must not do, he said, is to talk down to a jury by saying, “This is complicated.” He should give them credit for intelligence: “This may sound complicated, but you can figure it out.” Lawyers must also establish their own credibility in front of a jury, who, influenced by the biases of today’s culture, are likely to see the profession as not credible.
“Juries not only decide who wins,” Whelley said, “they can tell who is not genuine. You have to be yourself and become credible.”
“We tell them,” Gorman said, “‘Your courtroom style should be based on your personality. Don’t try to be what you’re not. If somebody else is flamboyant and you are quiet and logical, be yourself.’”
This can be difficult for beginning lawyers who may be focusing on trying to banish the anxiety of facing a jury. And most are apprehensive about the experience, Whelley said. An exception that proves the rule was a former student, a theater major as an undergraduate, who had no problem with nerves and no difficulty assuming a role. He had to work, however, on who he was himself as he faced the jury.
Gorman and Whelley encourage students, as they seek their own style, to go to trials and observe the lawyers. “If you like something,” Gorman tells them, “try it here. You can try things here without a negative effect on the client.”
Part of the process of finding and using the appropriate courtroom style is to become comfortable in the courtroom. “We want them to be comfortable looking toward a jury box,” Gorman said. “We want them to be comfortable with electronic equipment.”
Students are not the only ones who by the end of the course have benefited. “Every year I have to stay sharp on rules, on my techniques,” Whelley said, noting that law students are proficient at uncovering people who don’t know what they are talking about.
Learning to teach has also helped him in his practice. “As a partner,” he said, “I’m responsible to help train lawyers in the firm.”
But unlike Gorman, who taught middle school before her law career, Whelley had no pedagogical training before beginning teaching as an adjunct. In his training work, he said, “We talk about the same things that Barbara and I do. For example, how do I make this case simple?”
The process of a practitioner becoming a teacher can be a bit intimidating. Mary Kate Huffman ’90, Montgomery County (Ohio) Common Pleas Court judge and president of the School of Law Alumni Association, remembers clearly her first year teaching nearly a decade ago. After the course was finished, she told Kel Dickinson, then associate dean for academic affairs, that she didn’t know whether she did it right.
“I can assure you,” she remembered him saying, “that you did it badly.”
That was not quite the response she expected. But his point was simple: No one is a good teacher at first. That takes years. He also gave her pragmatic advice on how to use student evaluations, suggesting she discount the best and the worst (“There will always be people who like you a lot and people who dislike you a lot”) but pay attention to those in the middle, seeing how many of them said they learned from the course.
For, a teacher whose students learn is a good teacher.
And good teachers, adjuncts say, also learn themselves.
“You learn a subject inside out when you have to teach it to someone else,” said Judge Walter Rice of the United States District Court, Southern District of Ohio, who taught trial practice at UD for two decades. “If you can explain what you do and why, it makes you better.”
And that is “extremely rewarding,” said Ria Farrell Schalnat ’99, a patent attorney with Frost Brown Todd in Cincinnati, who, with professor Julie Zink, has taught a capstone course in patent litigation. “I feel like I’m giving something to the next generation of lawyers but also that I’m benefitting as much as the students when I look at the subject through their eyes.”
Part of that benefit comes from stopping and looking at one’s experience practicing law, Schalnat said, and “discerning which pieces will be useful to the learning process.”
Schalnat’s capstone course, like many of those taught by adjuncts, emphasizes practice. How much of a law student’s learning should be related to skills and how much to doctrine is a debate, Rice said, “that has waxed and waned for years.”
The two kinds of courses are different. They differ in purpose. Rice pointed, for example, to the difference between a law student learning when he or she could make an objection in court — a matter of learning the substance of the law — and learning when he or she should — a matter of learning the practice of the law.
The two types of courses also differ in how they are taught. According to Huffman, “Skills classes are where non-Socratic methods work. A teacher can’t tell you how to do a skill but can help you learn it.”
Rice praised the balance and the focus of Dayton’s approach to legal education. “The Lawyer as Problem Solver sounds like a cliché,” he said. “But that is exactly what a lawyer is.”
The bottom line, he said, is to serve “in the most effective, efficient and cost-effective way to produce the best results for your client.”