Teaching Evidence Law

Contemporary Trends and Innovations

Yvonne Daly, Jeremy Gans, PJ Schwikkard, Yvonne Daly, Jeremy Gans, PJ Schwikkard

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000090949
• Edition: 1
• Topic: Education
• Subtopic: Education General

Teaching Evidence Law sets out the contemporary experiences of evidence teachers in a range of common law countries across four continents: Australia, Canada, Hong Kong, Ireland, New Zealand, South Africa, the United Kingdom and the United States. It addresses key themes and places these in the context of academic literature on the teaching of evidence, proof and fact-finding.

This book focuses on the methods used to teach a mix of abstract and practical rules, as well as the underlying skills of fact-analysis, that students need to apply the law in practice, to research it in the future and to debate its appropriateness. The chapters describe innovative ways of overcoming the many challenges of this field, addressing the expanding fields of evidence law, how to reach and accommodate new audiences with an interest in evidence, and the tools devised to meet old and new pedagogical problems in this area.

Part of Routledge's series on Legal Pedagogy, this book will be of great interest to academics, post-graduate students, teachers and researchers of evidence law, as well as those with a wider interest in legal pedagogy or legal practice.

Part 1

New tools

Chapter 1

Learning Evidence with an uncasebook

Deborah Merritt and Ric Simmons

Introduction

Our uncasebook, Learning Evidence: From the federal rules to the courtroom, debuted in 2008. The book included no judicial opinions, which surprised both professors and students. Professors wondered how they would teach from a book without cases. Several told us candidly that they didn’t know what they would do in class if students understood the material from the reading. Students expressed no such worries; they posted effusive reviews on public websites and teaching evaluations. The book’s first review on Amazon read: “Wow, great textbook. I never thought I’d leave a review about a casebook or textbook (in fact, I don’t think I’ve ever seen one), but this book is amazingly awesome! If you have the choice to take a professor who teaches from this book, take that professor!”

The book, now in its fourth edition (2018), remains overwhelmingly popular with students. Professors have also embraced the book’s design. Supported by a lengthy teacher’s manual, a comprehensive website, and a library of hypotheticals, simulations, videos and written exercises, adopters have discovered that students are more engaged – and learn more – with these tools than with classes focused on analysing judicial opinions. In this chapter we attempt to explain this success. We first review the content of our uncasebook, and then explore the cognitive science principles that prompted us to write this new type of law school text. In a final section we address the concern that many new adopters voice: How will I fill class time if there are no cases to dissect and the students already understand the basic principles?

What is an evidence uncasebook?

Our Learning Evidence book has 72 chapters, most focused on a single rule or sub-rule. This structure allows students to concentrate on the text, policies and applications of one evidentiary principle at a time. A few road-mapping chapters, combined with a detailed table of contents, show students how the rules fit together. Classroom exercises, discussed further below, underscore those connections.

The rule-focused chapters all follow a similar structure. Each opens with a bulleted list of “Key concepts” alerting students to the concepts covered in the chapter. After this list, an introduction explains why judges and rule-makers adopted a particular rule. What types of evidence gave rise to the rule? What kinds of problems is the rule attempting to solve? What policies persuaded decision-makers to allow or exclude this type of evidence? Students grasp the nuances of a rule more easily if they understand the rule’s purpose before confronting the rule’s language.

The next portion of the chapter turns to the language of the rule analysed in that chapter. We reproduce the full language of the rule (or sub-rule), re-formatting the rule to aid comprehension. We also underline the key words and phrases that set out the rule’s important elements and, often, have prompted judicial interpretation. Textual discussion then briefly examines each of these underlined words or phrases. This discussion helps students understand the elements of each rule and the contested issues attached to those elements. Equally important, it reminds students that evidentiary law in the United States now rests almost exclusively on codified rules. In almost every American state, lawyers must refer first to a rule (not case law) to understand the bases for admitting and excluding evidence.

After grounding students in the policy and language of a rule, each chapter explores the scope and application of the rule in a section titled “In the courtroom”. We chose that title to excite students’ interest and to stress that rules acquire their meaning through their courtroom application. Some of our courtroom applications offer brief excerpts from real or fictional trial transcripts. These excerpts help students remember the foundational elements of a rule; they also illustrate how the rule affects the course of a trial. Most of our discussions, however, feature fact patterns and analyses drawn from judicial opinions. We don’t reproduce the opinions themselves; instead, we offer a succinct statement of the facts and issues presented in the case, followed by a discussion of the court’s analysis. If the court’s language is significant, we quote key phrases. We rely primarily, however, on our own presentation of the facts, issue and reasoning in the case.

We complement these case-based illustrations with ones drawn from news reports or our own imaginations. Many important evidentiary issues never generate a written opinion; others produce opinions that are difficult to excerpt. With our approach, we are able to create examples and analyses of every issue that students should know after completing the basic Evidence course. We also use our analyses to explain when a point is unsettled, subject to dissenting views, or highly dependent on the facts of a case.

Each chapter closes with a “Quick summary” of the material in the chapter. As we caution students in a “Study guide” prefacing the book, these summaries “do not contain all of the information you need to know from the chapter. You need to master details from the chapter, not just the summary principles”. The study guide suggests that students use the summaries to organise their learning and test their understanding; for each point mentioned in the summary, the student should be able to recall several examples and details.

In addition to this textual content, the Learning Evidence book includes several notable visual features. The book was among the first United States law texts to use colour formatting to distinguish different portions of the text. We also adopted a series of icons to help students navigate the analysis. Some icons mark key concepts, chapter summaries, and discussions that map a rule’s relationship to other rules. Others help students distinguish two types of open questions. A “balancing scales” icon tells students that courts agree on the substance of a rule, but outcomes depend heavily on the facts of each case. These issues are open in the sense that thoughtful advocacy is particularly likely to sway a judge’s ruling. A “walking-flying-fish” icon, on the other hand, signals a point on which the law is still evolving. Judges may not have yet addressed the issue or they may have issued conflicting decisions.

The book, finally, links to several types of media that help students deepen and assess their understanding. For the first edition, we developed online questions for self-assessment. In later editions, we greatly expanded the number of those questions, added video lectures and demonstrations, and created online simulations in which students play the role of either a trial attorney or judge. All of these tools have become part of our uncasebook approach.

Why use an uncasebook?

Our vision for Learning Evidence grew out of frustration with traditional casebooks. Reading a series of heavily excerpted judicial opinions is a very inefficient way to learn the law, especially a code-based subject like Evidence. This inefficiency is particularly costly in an Evidence class because of the sheer number of different rules that students need to learn in a short period of time. We also noticed that students struggled to identify principles, policies, and rationales from traditional casebooks; we ended up devoting much of our class time to helping students decipher issues that were resolved years ago, rather than encouraging them to apply the rules of evidence to contemporary disputes. Most worrisome, the rules rarely cohered into a framework that allowed students to relate each rule to the others.

The inefficiency of the case method may be a worthwhile cost during the first year of law school, because law professors need to teach students how to read judicial opinions and derive legal rules from the common law. But by the time students reach the second year of law school, most of them have mastered these skills. Even worse, many students rely on study aids and canned case briefs instead of reading the cases themselves. Those resources offer the salient points students need for class, without the bother of working through lengthy judicial opinions. In a large upper-level class, there is no effective way to force students to read cases regularly. If students don’t read the cases, then case-focused reading offers few benefits.

We recognised that upper-level students still need practice reading case law and deriving rules from cases, just as they need work on other lawyering skills. Other upper-level courses, however, offer more effective settings for students to practice case analysis: advanced legal writing classes, clinics, simulations and moot court competitions all provide rich opportunities to practice these skills. The marginal benefits of reading cases in the Evidence course, we decided, were small compared to the significant gains in understanding evidentiary principles that we could achieve by discarding the case method.

We chose to focus on expanding students’ understanding of evidentiary principles, including application of those principles to contemporary disputes, rather than on analysis of fragmented judicial opinions. Our text gives students a solid introduction to each rule, as well as illustrations of how courts apply the rule. In class, we build on that foundation with simulations, applications to novel problems and small-group work. Students develop a much deeper understanding of the rules than they do when listening to classmates recite nuggets from canned briefs. Our classes also highlight the many open issues and contemporary challenges in evidence law, rather than focusing on disputes resolved decades ago.

As we began writing our uncasebook, we discovered that our intuitions about student learning tracked the insights of cognitive scientists. Three of those insights, explored briefly here, informed our development of the book.

Working memory

The brain can store vast quantities of information in long-term memory, but the door to that vault is quite narrow. Information enters the brain through working memory, a slender passage that accommodates only seven to nine bits of data at a time (Miller, 1956; Sweller, 2005). Even when a reader concentrates fully on the printed page, the brain cannot absorb too many ideas at once. If we want students to learn the rules of evidence, we must match the flow of new concepts to working memory’s bandwidth.

Traditional casebooks often overwhelm that bandwidth. Students must identify the case’s procedural posture, parties and facts before they can focus on the evidentiary dispute. Since evidentiary issues arise in a wide range of contexts, readers must also separate the evidentiary issues from ones related to other parts of the case. Adding to the challenge, students must adapt to a different writing style with each opinion in the book.

Practicing lawyers readily extract new evidentiary principles from complex cases, but those lawyers already know the basic rules of evidence. Students stand in very different shoes. They do not yet know the basic principles, and they struggle to deduce those principles from opinions addressed to experienced lawyers. For a student, reading cases is a bad way to learn the rules of evidence.

The Learning Evidence text allows students to focus their working memory on key language in the rules, fundamental evidentiary principles and application of those basics. Once students have stored those concepts in long-term memory, they can turn to more challenging problems. This approach recognises the limits of working memory, as well as the brain’s ability to solve advanced problems through a process known as “chunking”.

Chunking

The brain allows learners to build complex knowledge structures by aggregating small bits of knowledge into chunks or schema (Sweller, 2005). This process occurs in working memory, with its limited capacity, so the process unfolds slowly. As a student encounters new information, the student can use working memory to search for related concepts in long-term memory. If the search yields a hit, the student can pull that related knowledge into working memory and connect the concepts. This produces a larger chunk of knowledge that the brain, in turn, stores in long-term memory.

The advantage of chunking is that, once concepts have been combined into a chunk, the learner can easily pull the entire chunk into working memory. A chunk of information, no matter how large, occupies very little of working memory’s bandwidth. Advanced learners and experts, therefore, can juggle many more concepts than novices. Experts don’t just know more than novices; they have chunked their knowledge in ways that allows them to apply complex schema to novel problems. A student approaches a hearsay problem by analysing one issue at a time: Is this a statement? Was it made outside the courtroom? Who was the declarant? Is the statement offered for the truth of the matter asserted? An expert may be able to answer all of those questions at once by applying a sophisticated schema, built over time through chunking, to the problem.

We designed the Learning Evidence book to help students chunk information and develop evidentiary schema. Each chapter begins with a list of key concepts that students can use to scaffold their reading. Those concepts alert readers to knowledge chunks that they will assemble when reading the chapter. Our discussion of the relevant rule’s text reinforces the identity of those chunks; it also ties each chunk to a particular word or phrase in the rule. The chapter’s examples and analyses then flesh out each chunk, adding illustrations to create a more detailed chunk of knowledge.

Worked problems

Traditional casebooks take a different approach to chunking information and developing schema. Those books assume that students will learn concepts and schema best if they search for key concepts in appellate opinions and statutes and then generate their own frameworks by synthesising concepts from those sources. Problem-based books sometimes structure these searches by focusing students’ attention on a particular client’s needs, but they still require students to identify relevant information and develop their own schema.

Students can learn this way, but it is an arduous, inefficient way of learning – and there is no evidence that these “generative” methods yield better learning than more structured approaches. On the contrary, cognitive science studies suggest that generative methods work only when students study very simple materials. When attempting to master more complex concepts, such as those taught in law school, worked examples are much more effective (Chen, Kalyua, & Sweller, 2015). A worked example shows students how to combine concepts into a larger schema – or how to apply that schema to a novel problem.

The Learning Evidence book offers hundreds of worked examples through the examples and analyses in each chapter. By reading these examples, students learn how to apply evidentiary principles to novel fact patterns. The examples illuminate both the underlying principles and the way that judges and lawyers apply those principles. Once students have learned the material through worked examples, the next stage of the learning process is to ask them to deepen their understanding by applying this knowledge through hypotheticals, simulations and other exercises in the classroom.

What happens in class?

In a traditional law school class, much of the class time is devoted to reviewing the cases and guiding the students to learn the legal rules and underlying principles involved. As noted above, the Learning Evidence text is designed so that students should have a strong understanding of the rules and principles from reading the book. At first some professors are intimidated by this prospect: if the students already know the law before they come to class, what role is left for the teac...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Acknowledgements
• Foreword
• Introduction: Taking evidence teaching seriously
• PART 1: New tools
• PART 2: New audiences
• PART 3: New fields
• Index