Syllabus
EVIDENCE
Fall 2015
Professor David S. Schwartz
Phone: 262-8150
email: dsschwartz@wisc.edu
Office: Room 9108
Office Hours: T & W 3:00 - 4:30
(or by appointment)
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Class meeting time: M, W: 9:50-11:50
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Rm. 2211
The rules of evidence define how facts are proven in civil and criminal litigation. Focusing on
the Federal Rules of Evidence, this course will provide a broad survey of the rules combined
with in-depth analysis of how they apply in specific circumstances. Analysis of appellate case
law will play a limited role in the course. Class discussions will be centered around hands-on
solving of specific problems, with emphasis on formulating questions, making and ruling on
objections, and planning how to get facts before a jury. The class will be highly participatory,
including simulation and role-playing.
Course materials:
1) Evidence: Text, Problems & Cases (5th ed. 2011), by Ronald Allen, Richard Kuhns,
Eleanor Swift, David Schwartz & Michael Pardo
Photocopied supplements available at the law school copy center:
2) Assignments and Supplemental Readings booklet
3) United States v. Carbon case file
4) Course web page: All other class materials will be posted to the course web page.
Course Structure
My basic approach to teaching evidence uses active learning methods and case simulations,
and requires a certain level of active engagement from students. In this course, after spending
approximately 11 weeks learning evidence doctrine, we will begin the “litigation module” of the
course. This requires you, working in a team, to take a realistic case file and analyze the evidence
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problems it contains. These evidence problems will not be identified for you. The realism, and
the challenge, is that you and your teammates must identify the evidence problems on your own
from the witness statements, transcripts and exhibits contained in the file.
Instead of a traditional exam, you will be required to produce two pieces of written work, and
an oral argument:
(1) “Group Case Workup.” This is approximately the length of a takehome exam, about
3,000-4,000 words which you will write collaboratively with a team. The Case Workup
essentially identifies and provides brief written analyses of evidence problems in the case file. It
will be due at the end of exam period—it’s essentially a group takehome exam.
(2) Motion in limine. Each individual team member will take one or two issues from the
case file and write up a more in-depth version of the analysis in the form of a motion to admit or
exclude evidence. This is a 1,500-2,000 word (5-7 page) paper that you will write individually.
(3) Oral argument. You will argue your motion in limine in class at the end of the semester.
This “litigation module” offers an excellent opportunity to consolidate and apply what you
have learned. The learning benefit is important to any law student, whatever your career goals
may be. But I particularly recommend it to anyone considering a litigation practice.
The 3-Credit Alternative
I recognize that some students will find the demands of the above-described basic approach
to be burdensome. As an accommodation, I’m offering a 3-Credit alternative intended for
students who want to satisfy the Evidence diploma privilege requirement and gain a general
knowledge of evidence law, but are not interested in litigation-focused projects. The 3-Credit
alternative substitutes a traditional final exam for the three assessments described above. The
exam will consist of multiple choice and short essay questions, and will be open book / open note
(either a proctored in-class exam, or a 24-hour takehome, to be determined).
Students opting for the 3-Credit alternative can expect to have completed their course work
by approximately November 23. You will not be required to attend the last two weeks of class,
or to undertake any of the three assessments in the 4-Credit course: group case workup, evidence
motion, oral argument.
**Note**
Both the 4-Credit and 3-Credit versions of this course qualify for
the diploma privilege.
The two sections will be graded on separate curves.
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Opting into the 3-Credit Alternative. Students who want to take the 3-Credit alternative
must email Jane Heymann, Curricular Coordinator, no later than 3:00 p.m. on Wednesday,
September 9. jane.heymann@wisc.edu
It may be possible to accommodate individual requests to switch into the 3-Credit section, or
to switch back from the 3-Credit into the 4-Credit section, after this date. However, no such
requests can be accommodated after Thursday, October 28.
Assessment and Grading
The elements of your course grade will consist of:
Class
participation
Quizzes
Individual
Final exam
Group
“Case
Workup”
Written
evidence
motion
Oral
argument
4-Credit
15%
20%
--
20%
25%
20%
3-Credit
15%
20%
65%
--
--
--
Alternative
Course Work
Problem method. The textbook consists mostly of expository text, like a treatise or
hornbook. There are some, but very few cases in the book. To learn the rules, it is crucial to
spend time trying to work through the assigned problems: these will be short fact patterns
requiring the application and analysis of one or more rules. Most of our class time will be spent
discussing or arguing the problems.
Course Web Page. For conducting this course, I rely heavily on LEXIS course web page.
You must self-enroll in the course web page. Please do this ASAP. Course Web Page
Enrollment info:
http://www.lexisnexis.com/lawschool/webcourses/
http://www.lexisnexis.com/lawschool/webcourses/faq_student.asp
Among other things, the following will be posted to the course web page:
1. All handouts and power-point visual aids used in class.
2. Quizzes and answer keys.
3. Sample final exams.
4. Any assignment or write-up that I ask to be submitted to me.
5. Recorded lectures.
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Recorded lectures. I’ve moved a lot of my lecture material “off site.” Many of my Evidence
lectures are recorded in the form of 10-20 minute narrated Powerpoint slideshows that are posted
to the course web page. I plan to do relatively little straight canned lectures in class. Instead,
lectures are assigned as homework, and class time will be spent doing what might have passed
for homework in a lecture-oriented course: working through problems in whole-class or smallgroup discussions during our class meeting times. This “flipped classroom” model is becoming
increasingly accepted among teachers at all levels of education.
Due to some technology changes over the years, the recorded lectures are in different
formats. The newer ones must be downloaded to be viewed, either as Powerpoint shows or as
wmv format videos. The older ones open directly in your browser: these are opened by clicking
on the title of the lecture, which doubles as a weblink.
A few of the older lectures still refer to pre-2011 versions of the Federal Rules of Evidence.
In 2011 the rules were changed stylistically, but not substantively, with some word changes and
subsection numbering changes. However, the older lectures are still substantively correct on the
law.
I recognize that there are heavy demands on your time, requiring you to make some triage
decisions about the work you’ve been assigned. Therefore, I will say this in all candor: if your
goal in the course is to get a B or an S as your final grade, you can probably get by with doing
either the reading or the recorded lecture on many, if not most, topics. While it is conceivable
you could get a higher grade than a B on this basis, depending on your own abilities and study
habits, I wouldn’t count on that. And it is also possible your performance could drop below a B
or S by foregoing either the reading or recorded lectures. Please don’t ask me for
recommendations about when you can best skip the reading or the recorded lectures: I guarantee
that if you ask me such a question, I will invariably answer “do both.” No matter what, I
strongly urge you to do both the reading and the recorded lectures for at least the first 2-3 weeks
before making a decision along these lines.
Quizzes. There will be five on-line quizzes in this course, approximately every other week
week, starting after the third week of the course. The quizzes will consist of multiple choice
questions in the style of the multi-state bar exam. This means that more than one answer may
have arguable merit, and you will be asked to pick the “best” answer.
These quizzes are designed to test your comprehension of the material, and to help your
learning. Educational research shows that information is best retained if learners are required to
retrieve the information soon after acquiring it and to do so again after a longer interval. The
quizzes will also help you to keep up with the work.You will be permitted to take the quiz
individually or in a group of up to 5 people. However, everyone must submit her or his own set
of answers on the quiz in order to have a grade recorded.
Class participation. Many law students view class participation as a question of individual
style and choice, but I think that understates its role and importance. As participants in a live
classroom, rather than a “MOOC” (massive open online course), we’re members of a learning
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community. All of us have a part to play in contributing to an environment where more and
better learning occurs than from what can be had by reading a book and viewing online resources
(like recorded lectures). Class participation is thus for the benefit of your classmates as well as
yourself, and opting out of it is, in my view, comparable to opting out of any community
organized for mutual benefit—i.e., a form of free-riding. I therefore feel it is justifiable to make
class participation a meaningful part of the course grade.
But I also recognize that not everyone is comfortable speaking in a large class, and for that
reason offer alternatives for class participation. The course web page includes a class blog where
I encourage you to post comments and thoughts relating to the course, evidence, and trials. This
is a chance to contribute to class discussion after a bit more time for reflection than you might
have had on the spot in class. I review the blog and count posts toward class participation.
New Evidence Problems. I’m always on the lookout for new evidence problems. Sources of
such problems might be news stories about actual cases, or situations arising out of movies or
TV crime shows, or whatever. I will award class participation credit to students for written
descriptions of these problems, and more credit for written evidentiary analysis of the problems.
Please post these to the course blog.
Attendance. Regular attendance is a requirement of this course. While it may be necessary
for you to miss a class on rare occasion, excessive unjustified absences will be factored adversely
in your course grade; an extreme case of excessive unjustified absences could result in failing the
course.
I recognize that various professional obligations may arise that create a conflict with
attending class. I generally consider unavoidable conflicts stemming from job interviews and
certain extracurricular or clinical activities to be valid reasons for missing class – provided that
they are really unavoidable and not excessive in number.
I also realize that many of you have outside professional commitments while attending law
school – outside work, externships, etc. However, absent truly exceptional circumstances, I
don’t consider such work commitments to constitute a valid reason to miss class. Except for
cases of illness or similar extenuating circumstances, more than three missed classes will
raise a problem under most circumstances.
Please be punctual for class. I expect you to be in your seat and ready to go (books open,
laptops booted up, etc.) at 9:50, which means getting to class at least a few minutes before 9:50.
Same for returning to class after a break. (I make it a habit to have a break once or twice during
the 2-hour session, for no more than a total of 10 minutes). In return for this commitment from
you, I commit to ending class on time.
Rescheduled class. I have to reschedule our Wednesday, October 14 class due to law school
related work. We will hold a makeup class on Friday, Nov. 6, at our usual time and place, room
2211, 9:50-11:50 a.m.
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