Faculty Publications

Foregrounding the importance of schemata in learning, Teaching Lawyering Skills presents an integrated approach to the overall pedagogical theory of law. Stefan Krieger challenges the traditional stark dichotomy between doctrinal analysis and practice skills, arguing that skills education requires development of strategic reasoning in practice. This fascinating book focuses on two main cross-cutting themes: effective investigation, analysis and presentation of facts; and effective questioning, listening and responding. Addressing these two themes in both dispute and transactional contexts, it outlines a unique course that centres the skills of fact investigation, interviewing, negotiation, deposition-taking, and direct and cross examination of witnesses. Ultimately, Krieger presents a storyboard method to teach trial advocacy, providing specific teaching guidance and suggesting practical exercises to use either in law school classes or office-based training. Utilising empirical research in the cognitive sciences and medical education pedagogy, this innovative book will be essential for law school instructors of simulation, clinical and externship skills courses. It will also appeal to trainers of new law graduates and paralegals at law firms, government law offices and nonprofits.

I am not sure how old I was, but I vividly remember my father telling me the story when I was fairly young of how his grandfather, sleeping in bed one night with his son, was viciously murdered in his sleep by an intruder bludgeoning his head with a piece of scrap iron. That story of the murder of my great-grandfather, Yomtov (Jacob) Schoenberg in Batavia, New York in 1915 always haunted me. I sometimes tried to envision the horror of that scene but have no memory of exploring that event in depth with my father. Nor do I recall any mention of this murder by any relative--including my great-grandfather's son, my Great Uncle Max, whom I knew.

But then, when I began teaching Evidence over a decade ago, I started to investigate what happened to my great-grandfather, Zayde Schoenberg, that night. My father had told me that the alleged intruder was arrested and tried. So I read the New York Court of Appeals decision in the case.1 I found that my Great Uncle Max was the key witness in the case and began to explore with my students the credibility of his testimony.2 And I discovered that the murder took place in the context of two different newly arrived immigrant communities in a small upstate New York city--the Jewish community of my great-grandfather and the Polish community of the alleged perpetrator, Jan Trybus--living among an already established community. So began my research into the archives--both legal and nonlegal--about the case. And so began my understanding that this case involved a number of stories besides the one told to me by my Dad.

This article describes the different stories I have encountered in this research: those of the victim, the alleged perpetrator, the prosecutor, the defense attorney, the private detective, the diverse immigrant groups, and the residents of the established community. These stories, I believe, provide a good example of how over a century ago, the different players in this murder case--from their own divergent cultural perspectives--used storytelling to try to explain this horrible tragedy. And not surprisingly, I discovered that some of the same ugly narratives about immigrants used today were prevalent a century ago. But just as importantly, through this inquiry, I learned that there were attorneys at that time who fought back against those narratives. And I gained some insights about myself. As an experienced civil rights lawyer, I discovered that the retelling of these stories shifted my narrative from the focus of what happened to my family that tragic night in 1915 to the legal rights of the perpetrator. The stories I uncovered changed my own story of that event.

Lawyers know how to tell a good story and are expected, en-couraged, and even ethically required to use that skill on behalf of their clients. In this article, the authors identify the benefits to the legal profession and the public of the use of client stories in legal scholarship and highlight the ethical issues raised by such publication. It is the interplay between these values-the improvement of the legal system versus the protection of client confidentiality-that is the focus of this paper.

Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that challenge a purely logical approach to relevancy decisions. Drawing on cognitive science and philosophy, the Explanatory Paradigm offers an effective critique of making admissibility decisions based on probabilistic formulas. This model also provides robust criteria for judging explanations. The Explanatory Paradigm, though, gives little attention to the role of narrative, a concern at the heart of Applied Legal Storytelling. This Article aims to correct this oversight. Applied Legal Storytelling’s insights on narrative and context, combined with the criteria of the Explanatory Paradigm, offer a workable alternative to the Probabilistic Paradigm. This project, in important ways, restores the common law’s embrace of witness stories as a way to determine the truth.

The Sixth Edition of Essential Lawyering Skills: Interviewing, Counseling, Negotiation, and Persuasive Fact Analysis continues to emphasize the role of the attorney in the lawyer-client relationship. Widely respected practitioners and teachers, the authors' introductions, visual aids, and realistic examples illuminate the basic mechanics of these key skills. Case situations and problem-solving scenarios engage students in developing essential lawyering skills that mirror legal practice.The topic of professional responsibility is integrated throughout. New to the Sixth Edition: New co-author Renée Hutchins brings her new perspective to the course Updated and improved design makes the material more accessible for today's student Increased coverage of negotiation in the plea-bargaining context Updated examination of the use of electronic media in fact analysis and negotiation Professors and students will benefit from: An emphasis on practice and the mechanics of negotiation and persuasion, rather than on theory Complete coverage of problem solving, interviewing, counseling, negotiation, and fact analysis Remarkably clear and penetrating discussion of the persuasive value of facts, supported by useful visual aids Generous use of interesting examples that place topics in context Integrated coverage of professional responsibility where appropriate Experienced authors, who draw upon many years of teaching and writing about lawyering skills