Evidence Teaching Wisdom: a Survey
| Publication year | 2002 |
| Citation | Vol. 26 No. 02 |
I. Survey Concept
A law school course on evidence offers a rich variety of pedagogical approaches. The classroom possibilities in this area of the law stem from the role of evidence law in creating the factual record of a case. The familiar dynamics of the trial offer dramatic opportunities that can enhance learning. Abstract rules can be understood in a variety of ways: case analysis;(fn1) direct application to a series of problems;(fn2) the simulated posing, opposing, and resolving of objections arising under the Rules of Evidence;(fn3) or some combination of these approaches. It is not surprising that all of these pedagogical methods are reflected in the teaching approaches of evidence faculty.
This Survey secures data on the methods American law school faculty use to teach the law of evidence. The Survey provides insight into the teaching of evidence and facilitates discourse among evidence faculty on how we teach the course, for the benefit of new or occasional instructors as well as veterans. Specifically, the Survey focuses on the question of which classroom instruction approach predominates among evidence professors.(fn4)
The author learned the subject at Northwestern University School of Law from Professor Jon Waltz, an eminent evidence teacher and scholar,(fn5) under what is termed the "case approach." Having taught the subject for over twenty years using the "problem approach," the author surveyed evidence law teachers of similar vintage to assess their aggregate wisdom about teaching effectiveness in this area of the law.
In the process of drafting a simple instrument to generate data on this point, the inquiry expanded to secure information on other topics that might be of interest to new and seasoned evidence faculty.(fn6) In addition to questions about the effectiveness and drawbacks of the problem and case approaches, the Survey asked about the following: (1) the percentage of classes that were lecture; (2) the use of audiovisual and other graphic aids; (3) midterm evaluations; (4) student participation; (5) supplementary materials; (6) syllabuses; (7) exams; and (8) the overriding challenges of teaching the subject of evidence. The Survey is included in this Article as Appendix I.
The Survey was limited to evidence teachers in the Association of American Law Schools Directory who were listed as having taught the subject for at least ten years.(fn7) The Directory, the most comprehensive reference of American law faculty, listed 328 names of evidence faculty in this tenure category. Internet communication made it possible to circulate the Survey quickly in the body of an e-mail message and secure practically instantaneous responses. The author encouraged respondents to respond briefly using the reply option. A number of surveys were undeliverable because of problems with the addresses carried in the Directory. Some who had been listed as having taught the course for the last ten years had discontinued the course offering. Most of the respondents replied immediately, although there were a few who set aside the Survey and responded later. The author did not follow up with those who did not respond and did not attempt to secure new addresses for those surveys that were not deliverable at the old addresses. Using this approach, the author secured seventy-nine usable responses, roughly 24% of the evidence teachers surveyed,(fn8) and of that number, fourteen (18%) were authors of either case- or problem-oriented evidence texts.(fn9)
There is no clear line of demarcation between the case and problem approaches to teaching evidence, and one's approach is, of course, driven by the teaching materials. Texts that use what is termed in this Article as the "case approach" typically feature cases, problems, questions, and commentary; the texts using what is called the "problem approach" contain problems, text, and some smaller number of cases as well. For purposes of distinguishing between approaches as clearly as possible, the Survey uses the following definitions: the case approach is defined as using texts that feature the edited versions of full judicial opinions followed by notes, questions, problems, or some combination of the three; the problem approach is defined as using teaching materials that feature textual discussion almost exclusively, followed mainly by problems, with few edited opinions. While most teachers will use one of these two teaching methods, others use a hybrid approach. Teaching materials for the hybrid approach might include a treatise, the Federal Rules of Evidence (FRE), problems, cases, and the professor's own materials.
II. Survey Results(fn10)
Among the seventy-nine respondents, thirty-six professors use what is described as the problem approach. This constitutes 46% of the respondents. The problem approach used by these professors conforms fairly strictly to the format of problem texts. The students read textual materials from the primary and secondary texts, work the problems in advance, and discuss the problems in class with some interspersed lecture.
Twenty-six (33%) of the respondents use the case approach. As discussed later, that approach usually involves more than simply having students read the Rules and brief cases for discussion in class.
The remaining seventeen respondents, or 21%, use some hybrid approach-usually a combination of problems, cases, simulations, and other techniques. A numerical breakdown of the survey data is set forth in Appendix III.
While the case and problem approaches have become standardized, the Survey reveals considerable variation in hybrid approaches. A sampling of these approaches includes the following: (1) using case-approach materials with about half the discussion in each class session based on hypothetical problem handouts and electronic teaching software; (2) combining a problem-oriented text with the professor's own materials, consisting of cases and some statutory materials; and (3) using a problem approach supplemented by cases, or a case approach supplemented by problems, with simulations featuring role playing with the students and professor. The role-playing simulations are designed to help students recognize objectionable materials and learn to articulate objections and responses to objections. One professor occasionally offers a one-hour presentation course for a limited number of students (approximately twelve) selected from the much larger evidence class. During this small group session, students apply through simulations what they have learned from the regular course. Another professor lectures for the first ten weeks of the semester using an electronic textbook that features an annotated trial transcript to exemplify evidence principles. This is followed by one-half week of an "L.A. Law" episode (watched from beginning to end with student comments), and the remainder of the course consists of written problems that allow students to role-play as witnesses, direct and cross-examiners, and judges. One professor uses what he calls a paradigm approach, featuring a set of paradigm facts from a case or hypothetical for each concept or rule. Another uses trial vignettes in which evidence issues arise within a trial situation, such as an examination, offer, or motion. Students prepare for these exercises outside the classroom. Evidence professors tend to fall mainly into the two categories defined by the problem and case approaches. However, as this sampling suggests, the Survey revealed a rich variety of approaches to teaching evidence.
Survey respondents provided well-articulated rationales for choosing one method of teaching over another. The rationales focus on professorial judgments about how to best deliver value to the students.
1. Problem Approach
Those professors choosing the problem approach expressed the recurring and interrelated themes of engagement, application, efficiency...
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