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CUTTING EDGE: Cross-Discipline Training or "How to Herd Wary Adversaries"
by Daphne A. Burns

In a recent Op-Ed column in the New York Times, Mark Taylor, chairman of the religion department at Columbia University, urged an end to the university as we know it, suggesting, in part, that the university curriculum be restructured "like a web or complex adaptive network (Mark C. Taylor, Op-Ed., End the University as We Know It, N.Y. Times, Apr. 27, 2009, at A23). " In short, "[r]esponsible teaching and scholarship must become cross-disciplinary and cross-cultural." Taylor was speaking of broader cultures on the university campus—religion, politics, history, economics, anthropology, philosophy, art and the like. But in the legal profession—in the criminal law arena, for instance—the provinces of the prosecutor, defense counsel, and the bench are as far apart as university colleges (if not more so).

For example, judges, prosecutors, and defense counsel who try death penalty cases tend to be rather polarized in their approach to continuing legal education. According to Scott Sundby, who is the Sydney and Frances Lewis Professor of Law at Washington & Lee University School of law and teaches at capital cases courses, the judges and attorneys use the legal education courses as support groups to share their war stories and brainstorm on how to deal with difficult situations. Sundby says this support group function plays a heavy role in the desire of the judges, prosecutors, and defense attorneys to hold separate educational sessions that exclude the others.

However, lawyers and judges also serve the role as guardians of the law. Fulfillment of this role requires an understanding by lawyers and judges of their plenary relationship with and function in our judicial system.

To further their role and improve the functioning of the judicial system in the administration of the death penalty, the Bureau of Justice Assistance recently awarded grants for cross-discipline training. Pursuant to the grants, the grantee-states and grantee-organizations invite an equal number of prosecutors and defense counsel to participate in a capital cases training along with a number of judges. A model curriculum for the training is substantively revised by a faculty of state judges, prosecutors, and defense counsel to meet the individual state's needs. Although, initially, prosecutors and defense counsel may be reticent to participate; once convinced to do so, the outcome is compelling and convincing.

The National Judicial College conducted such cross-discipline trainings this year with the states of Virginia and Pennsylvania. A well-respected judge-jurist from Virginia kicked-off their two-day program with a talk on the many hats judges and lawyers wear in the fulfillment of their roles. He invited the participants to shed their adversarial cloaks and meet at the crossroads of their oaths to support the state and U.S. constitutions.

Although the energy of decades-long adversarial relationships bubbled up on a few occasions, the prosecutors, defense counsel, and judges were able to work through a host of issues relative to discovery, negotiations, voir dire/jury selection, and mitigating and aggravating circumstances in death penalty cases. And they broke bread.

In a survey of state judicial educators, roughly 30 percent of those responding say they specifically tailor continuing education courses for a combined judicial and attorney audience. Only 23 percent of those who responded in the affirmative include consensus-building dynamics in the courses. Thirty-six percent of the responding state judicial educators have attempted cross-discipline training in a particular substantive law area. Of note is a comment from one judicial educator who said the training was very helpful for judges because it "gives them access to issues faced by other participants in the litigation process." Indeed, Jules Epstein, associate professor of law at Widener who also instructs judges and attorneys at capital cases courses, said the Pennsylvania training "exposed judges to the dilemmas attorneys—both prosecution and defense counsel—face in capital cases."

It may be that cross-discipline training serves as a good antidote to the lack of civility complained of by judges and attorneys in the judicial system. Ideally, however, it brings the players out of their delineated roles and into their ultimate role as guardians of the law in the justice system.

Copyright 1999-2012, National Association of State Judicial Educators
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