Lawyering From Day One: The First-Year Trial Practicum
by
Russell E. Lovell, II

Legendary Harvard Law School Dean Roscoe Pound believed that the application of law has a decidedly human dimension. Dean Pound, who made a distinction between "law in action" and "law in the books," fully appreciated the legal knowledge that every lawyer must possess to succeed. But he also knew professional success required a synergy of knowledge with advocacy, counseling, and problem-solving skills. Drake's First-Year Trial Practicum not only implements Dean Pound's insight, it represents Drake's response to the indictment, popularized in the movie "Patch Adams," that the first year of professional school education often is too detached from the patients or clients whom the students hope to eventually serve.

Drake Law School's "Lawyering from Day One" mission is reflected in an experiential education pyramid: OBSERVATION - SIMULATION - PARTICIPATION. Experiential learning begins with Drake's First-Year Trial Practicum, in which every student observes an actual jury trial in the spring semester of the first year. From jury selection through jury verdict, students are placed in an educational setting that includes small-group discussions led by clinical faculty, seasoned judges, and veteran attorneys. Lectures and practice panels focus on the key legal and procedural issues and on the litigation strategies and techniques of the lawyers trying the case. The Trial Practicum is not a moot court or mock trial experience. The case observed is an actual jury trial. Conceptually, it may be helpful to think of it as the laboratory component to the classroom.

The critical role of the "real world components" cannot be emphasized enough. The Trial Practicum would be just another law professor's idea gathering dust without the judiciary's embrace, and the cooperation of court and security personnel and prosecution and defense counsel. A felony criminal jury trial in your on-campus courtroom is not something you order from West Publishing Company. It happens only because the judiciary, and counsel, are confident that the integrity of the trial, and security, will be preserved.

The first two Trial Practicums involved burglary (State of Iowa v. Stephen Blumberg) and murder trials (State of Iowa v. John Molloy) tried by 12-person juries, with district judges Arthur Gamble and Larry Eisenhauer presiding. There were real defendants and victims and county attorneys and defense counsel trying the cases. Both resulted in convictions that have been subsequently affirmed by the Iowa Court of Appeals, and both defendants are serving prison terms. The third year featured a civil trial, Ken Downing v. City of West Des Moines, that involved allegations of constitutional tort and defamation. It was tried by an eight-person jury which awarded the plaintiff $10,000 in damages. District Judge Rob Blink presided. Prior to Judge Blink's ruling on court-awarded attorneys' fees, the case was settled for $40,000.

The 2001 Trial Practicum involved the trial of an armed robbery, State of Iowa v. Clarence Willis, presided over by Judge Robert Wilson. The three-and-a-half day trial resulted in an acquittal. As criminal trials are high drama, the students fully appreciated that a man's liberty was at stake. Armed robbery under Iowa sentencing laws carries a mandatory prison time of at least 22 years. The case centered on the reliability of eye-witness testimony. The students' discussions, and undoubtedly the juror deliberations, centered on inconsistent testimony, credibility of witnesses, and the reliability of eye-witness testimony. The juror debriefing confirmed the initial vote was 9 to 3 for acquittal, and it was fascinating to listen to jurors explain their thoughts about the conflicting evidence that eventually brought consensus for acquittal. The depth of our students' understanding and appreciation of the crucial difference between the "beyond a reasonable doubt" and the "preponderance of evidence" standards of proof gained from the Trial Practicum is not something that can be replicated through case analysis in a classroom. They learned from the juror debriefing that the jurors felt it was likely the defendant had committed the crime, but the jurors concluded defense counsel had succeeded in raising sufficient doubt as to the prosecution's case that they could not convict.

The Law School's excellent relationship with the bench and bar has been critical to the success of this curriculum innovation. Working with Chief Judge Arthur Gamble, we have had the complete support of the Iowa trial judges of the Fifth Judicial District. The Neal and Bea Smith Law Center's wonderful courtroom has enabled us to bring actual trials from the Polk County Court House in Des Moines to the Drake campus.

The week of the trial, and all its accompanying programming, represents only the tip of the iceberg in terms of the preparation and planning that go into each Trial Practicum. The greatest challenge is identifying cases that actually will go to trial, that can be tried within one week's time, that can be tried at the Law School's on-campus courtroom with the consent of the litigants and counsel, and that are educationally valuable. Since more than 90 percent of cases settle, often on the courthouse steps, we have screened approximately 150 cases each year, in order to identify the case to be included and several backup cases. Some of the screening can be delegated to staff, but much must be personally done by the faculty member in charge. In January 2001, Judge Gamble issued an Administrative Order designating the Smith Law Center courtroom as a place to hold court under the Iowa Code. This order provides an important safety net for the Trial Practicum, as it permits the court to assign a case to the Smith Law Center should there be unexpected late settlements in cases that had been planned for inclusion.

The Trial Practicum is a week-long, five-day experience. The one-week time commitment enables us to include complex cases and enables students to observe the entire process from jury selection to closing arguments to verdict. The Trial Practicum not only brings to life the subject matter of several of the first-year courses, but it also creates a shared foundation for Evidence and other upper-level litigation-related courses, as well. The evaluations by students, faculty, attorneys, and court personnel have uniformly praised both the fairness with which each trial has been conducted and the dynamic learning experience each Practicum has afforded.

For many students, the highlights of each Practicum have been the debriefing sessions conducted after the conclusion of the trial. The first is held with the lawyers who actually tried the case, the second with the jurors who decided the case. These sessions have enabled students and faculty to question the lawyers as to their strategies and to ask the jurors about both the rationale for their decision and the effectiveness of the lawyer's presentations. During the past two years the judges have enjoyed informal brown-bag luncheons with groups of 20 or so students.

Each year 15 or so lawyers have volunteered a week of billable hours to serve as small-group discussion leaders and practice panelists. The central and collaborative role the Trial Practicum design affords judges and lawyers in the educational experience contributes significantly to the program's success. This volunteerism has meant that the Trial Practicum has been incredibly low budget, making it a feasible curricular innovation at every law school. It also serves as a testimonial to the program's educational integrity - former justices of the Iowa Supreme Court, retired district court judges, senior partners in Des Moines' largest law firms, and busy public interest lawyers do not donate a week's time, year after year, unless they believe they are making a difference.

Many will recall the movie "Patch Adams," in which Robin Williams plays an irreverent medical student who is critical of a curriculum that provided no patient contact during the students' first two years of medical school. The movie demonstrated that effective medicine requires a holistic approach that includes learning compassion and communication skills so physicians can accurately diagnose and heal. The lessons of "Patch Adams" readily transfer to the study of law. The First-Year Trial Practicum teaches students about the trial as a story, about the judicial process and the responsibility of jurors in the decision-making process, about lawyers and effective advocacy, and much more. It introduces students to law in action in a way that no textbook can ever capture, to lawyers and lawyering, and to fundamental values of civility, professionalism, and public service. Drake's First-Year Practicum is fundamental in concept and yet revolutionary in implementation, with the entire first-year class observing a week-long Polk County District Court jury trial, from voir dire to verdict, in a structured educational setting.