Using criminal law role-play to teach oral lawyering skills

Professor Anne Himes teaches courses on Criminal Law and Business Organizations in the American Law: Discourse & Analysis (ALDA) Program* for LL.M. students at St. John’s Law School. She has an English language teaching certificate from The New School, an M.A. and B.A. in German from the University of North Carolina, and a JD from Columbia Law School. She was previously a partner in the corporate department at Milbank, Tweed, Hadley & McCloy LLP, a premier international law firm.

*The ALDA Program specializes in teaching LL.M. students substantive law with integrated language support. All four ALDA professors have a combination of extensive language teaching experience and legal practice experience.

In the Fall 2018 semester I taught an overview of US criminal law and the criminal justice process for St. John’s ALDA students that culminated in a new court role-play activity I designed in response to student difficulties with the main course materials on the criminal justice process side of things: New York Times articles that followed the shooting of an unarmed man by an off-duty NY police officer from the time of the incident all the way through the verdict of the jury.   

Those readings grew out of my searching for a way to put a face on our criminal justice process. I have found that random observation trips to court are hit or miss at best and certainly cannot show a full trial, much less the full criminal justice process; the best trial observation experience I have had with my students so far has been hearing the full testimony of an expert witness.

I had my students read and study those news articles, and we had in-depth discussions of them, but those news articles got us only so far.  The students struggled with some of the language, such as taking words literally and not considering them in context, and had understandable difficulty with the cultural/geographic issues –  a road rage incident, with racial overtones, on the Fourth of July, in a rough neighborhood. In short, they seemed to be getting a bit bogged down.

I landed on the idea of having the students  role-play the crucial part of the trial they had been reading about: the direct and cross-examination of the prosecution’s main witness (girlfriend of the victim, who witnessed the killing) and the direct and cross-examination of the defendant, who took the stand in his own defense. The students would take on roles of the lawyers and the key witnesses in a case that they were by then very familiar with.

The students were randomly chosen for their roles of prosecutor, main witness for the prosecution, defendant, and defense attorney, and each student got to play a lawyer role at least once. The student lawyers worked together with their classmate witnesses on questions to be asked on direct and questions to expect on cross. We had discussed in class what the questioning was trying to achieve as a general matter, but the students were on their own as to the specifics.

The role play was held in the law school’s moot courtroom, the witnesses were sworn in and testified from the witness stand, the student lawyers stood at a lectern to do their questioning, the TA acted as court reporter, I was the judge, and it was all ” very serious” as one of the students remarked on the way into the courtroom. The students were very engaged – the defendant’s lawyer even asked a couple of questions on re-direct after listening to the cross-examination of her client  – and the activity went even better than I had hoped. It was fun and challenging for the students, and I think they gained a lot of confidence doing it.

To make this a serious exercise, I told the students it would be part of the Final Assessment in the class. I wanted to try to energize and motivate them to really think about what was going on in the case from the standpoint of the defendant, facing 25 years to life in prison, and the victim’s girlfriend, who had seen her partner gunned down in front of her and their children.  It worked. The students marshaled the facts to support their position, extrapolated beyond the facts in a creative and defensible manner, and were forceful in playing their roles. During the questioning/testimony, they of course made mistakes in use of language (but why would there still be errors in using the verb “shoot” after our focus on that? I gave a rare correction from the bench for that mistake), but they were not self-conscious speaking and plowed ahead to make themselves understood, which is what I was after.  

Seeing the benefit of such an activity, I plan to do something like this again, in this course and perhaps in others.  I definitely plan to try to lay the reading groundwork earlier in the semester so that we can do the roleplay earlier in the semester.  And an obvious way to expand the activity in a criminal law class would be to have students do the opening statements at trial as well, providing great practice in summarizing and focusing on the big picture.

This was my first experience using an extended role play.  I realized it could end up being either really good or really terrible.  But fortunately, it turned out to be a big success for the students and a shiny new tool for my toolbox.    

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