Monday, January 24, 2011

A Declaration of (a Sort of) Victory

In the early 1990s I began teaching a course in fact investigation. This course was largely the upshot of two experiences: (i) my discovery at the very beginning of my legal career that practicing litigators did not know how to teach novice lawyers how to formulate effective strategies for pretrial fact investigation and formal discovery, and (ii) my collaboration with David Schum in a seven-year NSF-supported research project on preliminary fact investigation.

Before ever working with Schum, I aspired to develop a theory of pretrial fact investigation and trial preparation -- in part because my two stints in litigation convinced me of the immense importance of pretrial fact investigation and pretrial preparation. After working with David Schum (and learning from him), I came to believe more firmly than I did before that it is possible to teach important parts of the art and science of fact investigation.

The course I started to teach in the early 1990s was an overtly experimental one. The course evolved over the years. As the years passed, I made increasing use of the evidence marshaling software (originally based on HyperCard) that David Schum and I began to develop during our joint research project. As the years went on, I continued to tinker with that software, and along the way I added a number of new stacks to represent additional methods or strategies for organizing evidence in legal settings or in anticipation of legal settings. (That software eventually acquired the moniker MarshalPlan. [If you activate this link, please use Firefox or Internet Explorer and accept the plug-in.])

In the early years the experimental course I taught attracted a decent but relatively small number of students.

In the very first years I gave the students simulated (made-up) problems to investigate. That changed: I began to ask students to investigate real-world problems.

In the early years I gave students a hefty dollop of theory. As the years passed, I still gave students dollops of theory, but I put increasing emphasis on actual investigations.

A few years after starting the course, I began to teach the course with Zachary Weiss. At that time Zach was with the Manhattan DA's office; Zach, a very good trial lawyer, devoted most of his time there to organizing and supervising investigations. Later he moved to the Office of the Attorney General of the State of New York, where he continued his work in investigation.

These days I co-teach the fact investigation course with Philip Segal. Phil worked for the Wall Street Journal before going to law school. Now he runs his own investigation company.

Perhaps as a result of these various changes and developments, the course that I now co-teach with Phil is quite popular as such courses go. Last semester we had approximately 40 students in our "seminar." This semester we have approximately 50 students. I hasten to say that popularity with students is no guarantee of scholarly, professional, or pedagogical excellence. But I believe that student acceptance of our fact investigation course is some evidence and my colleagues and I have figured out ways of teaching important aspects of the art and science of fact investigation.

My claim, if valid, has great theoretical significance as well as practical significance. One of the abiding mysteries or puzzles of epistemology is where good ideas come from -- or how one acquires useful conjectures about the world as well as how one justifies one's conclusions about the world. The course in fact investigation sheds important light on that important question.

I am a slow learner. But I will go to my grave with a measure of self-satisfaction and a feeling of vindication.


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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