Mitchell, J B --- "Using Global Law to Teach Domestic Advocacy" [2007] LegEdDig 35; (2007) 15(2) Legal Education Digest 47

Using Global Law to Teach Domestic Advocacy

J B Mitchell

[2007] LegEdDig 35; (2007) 15(2) Legal Education Digest 47

9(2) J P & Clinical L 1, 2007, pp 1–22

Among us academics, exploring the integration of a global perspective into the law school curriculum is considered to be ‘fashionable’ these days. It merited an all day session at the January 2006 American Association of Law Schools (AALS) National Conference, appeared among the roster of programs for AALS 2006 Clinical Conference, filled an entire issue of the Journal of Legal Education, and is the subject of a growing body of pedagogical scholarship, as evidenced by the works cited in this article. It also offers interesting possibilities for teaching domestic trial advocacy.

There as yet exists no clear, agreed upon definition of what is meant by ‘globalisation’, let alone any definable body of what can be termed global law. While global law has been much the topic of discussion in the law school world, few schools are yet doing more than talking; although a few have taken the lead in beginning this alchemy of turning base domestic legal education into something of substance in the glittering world of globalisation.

Given the lack of a precise, agreed upon definition of global law, it should not be surprising that a wide variety of approaches for implementing the integration of global law into the law school curriculum have bubbled forth from the cauldron. Thus, as most are aware, some schools offer comparative law courses, some bring in foreign scholars to teach or co-teach classes on foreign law and/or bring comparative perspectives into domestic doctrinal courses. Some schools have conjured International Law and Comparative Legal Culture courses, while others see, in the rising steam from the cauldron, a unifying Institute on Globalisation, or a mandate to send their students to law clinics in foreign countries. More visionary still, others propose a pervasive global curriculum, where global perspectives are integrated into existing domestic doctrinal courses rather that confined to discrete doctrinal offerings.

While there have been whispers in this global law dialogue hinting at the possibility of refining our clinical perspective through a global awareness, virtually all of the curricular discussion (and implementation to date) has focused upon doctrinal and jurisprudential infusions. In fact, other than foreign externship placements, setting up and/or working in foreign law clinics, offering Human Rights or Immigration Law clinics, or transactional simulations (which I assume someone, somewhere is conducting) in a discrete set of courses in which multiple bodies of domestic, foreign and international law play a part, there do not appear to be real hands-on transnational clinical experiences in American classrooms. Though that may be about to change.

Think about the ultimate focus of this article: Basic litigation skills training. The creative possibilities are extensive.

But at this point, my thoughts about teaching trial skills within the influence of global law are far, far less ambitious. I propose taking unique aspects of some foreign legal system and using these unique aspects (as compared with our system) as a tool to help the students’ domestic advocacy skills. You could use any foreign legal system, though choosing a fellow common-law system would probably be easiest given the students’ familiarity with the structure of that system.

In order to fully demonstrate this idea, concreteness seems the best approach. I have thus created an imaginary class for this article, replete with exercises and accompanying teaching notes. For this class, I have chosen the Scottish criminal procedure system due to a variety of interesting systematic differences from our own, including the ‘Scotch Verdict’, which I feel would be pedagogically useful.

Though inevitably the students would obtain some of the benefits said to reside in the integration of global law in the curriculum (e.g., gaining a perspective from which to critique our own system, offering an antidote to American-centred provincialism), that is not my primary goal. Nor do I intend that the students imagine themselves to be Scottish lawyers — after all, we all recognise that in order to have the context needed to carry out such a task, the students would need to fathom the Scottish culture and character, and the social and political history of Scotland, as well as the interrelationship between Scottish law and the culture.

Again, my incorporation of Scottish criminal procedure into exercises in an American trial advocacy course is an exercise in instrumentality. It is intended as a device to enhance the student’s domestic advocacy skills by literally changing the rules on them, thereby forcing them to rethink their strategic litigation approaches when the range of procedural assumptions underlying their strategies (e.g., that they will be allowed voir dire, that the verdict must be unanimous, that they may give an opening statement) abruptly change.

What follows is a full demonstration of my concept. It includes an oral ‘assignment’ to the students in a trial advocacy class, and then ‘teaching notes’ for the exercises that will be the focal point of that assignment. As you will see when reviewing the teaching notes, in Part 1, students quickly catalogue the various aspects of the Scotch criminal procedure system in which that common-law system differs from our own. In Part 2, going back to the American procedural system, I put forth a simple robbery case hypothetical, and then set up a series of questions for a simulation class in which the hypothetical is used to help develop the students’ strategic and performance litigation skills.

Finally, Parts 3 and 4 contain mock teaching notes for using the Scotch criminal justice system within the same hypothetical as in Part 1, again, in order to refine the students’ strategic and performance trial skills.

Assignment to Class: We’re going to change the procedural rules, and then have you re-think how you’d carry out and/or modify your Case Theory.

We’re going to stay in our basic American legal system, but we’re going to borrow a few rules from a fellow common-law nation — Scotland.

The procedural rules (in conjunction with Rules of Evidence) set the boundaries on plausible strategic options for effectuating your Case Theory. By changing the rules on you, I’m forcing you to be flexible, adaptive, and creative in your understanding of trial strategy.

Teaching Notes for Exercise. Description: This exercise has four (4) parts, if you chose to do the full exercise.

Part 1: Introducing the Scottish Criminal Procedure System — Depending on the time the Instructor chooses to commit to this portion of the exercise, the Instructor can (1) provide the students with a list or chart noting the differences from our system, or (2) have the students bring forth and discuss the differences.

Part 2: Case strategy in the American system — alibi vs. ‘reasonable doubt’ defence — In this exercise, the students are defence attorneys strategically approaching the defence of a robbery charge. As an option, skills exercises tying strategic decisions to voir dire and opening statement are included.

Part 3: Some hypothetical; different system of criminal procedure — In this portion of the exercise, we take a second look at our hypothetical, but, for this round we imagine that we are working in American courts, but have incorporated all the variants of Scottish criminal procedure listed in Part 1, except the ‘Scotch verdict’. We’ll use that unique feature of the Scottish system in Part 4.

(1) Which strategies we’ve discussed in Part 2 are either unavailable, or significantly curtailed under the Scottish procedural rules?

(2) Can you compensate for any of these limitations on the strategies from Part 2? How?

(3) Are any strategic options available under the Scotch criminal justice system that were not available under the American system? How will that option effect your cross-examination?

Part 4: Incorporating only the ‘Scotch Verdict’ — In this portion of the exercise, all aspects of the American system remain as they are except we replace the guilty/not guilty verdict with the three part (Scotch) verdict — guilty/not guilty (eg, Innocent) / not proven (eg, reasonable doubt).

(1) How would this form of verdict affect your voir dire?

(2) How would this form of verdict affect your decision about whether to put the defendant and/or the alibi witnesses on the stand?

(3) How would this form of verdict affect your opening and closing?

Awareness of law beyond the borders of our nation is one ‘fashionable’ topic which is destined to remain with us. My expressed goal in this article was to use the criminal procedure of a foreign nation as a pedagogical tool for creating some very challenging exercises to improve strategic aspects of the students’ domestic advocacy skills. At the same time, it is plain that such a use of foreign law carries other, secondary benefits. If nothing else, it can spice up the pedagogy, and that is hardly something to be taken lightly. Also, in the manner of a liberal arts education, exercises such as these add to the students’ general knowledge of the world. These types of exercises also offer an antidote to our tendency towards American-centred provincialism. Beyond being told about another version of our common-law system, you get an additional level of appreciation when you actually attempt to use the aspects of that system that differ from our own. Come to think of it, as fashions go this may not prove to be a bad one.