Law Taught From Head and Heart

WHEN they first get to know him, Stephen Herzberg's law students tend to tell him to cut his hair. But when they get out and start practicing law, they do things like sending him a transcript of their first case. Professor Herzberg has developed an enthusiastic following at the University of Wisconsin Law School, where he teaches. He recently won a highly competitive award for excellence in teaching trial advocacy from the Roscoe Pound Foundation, an affiliate of the Association of Trial Lawyers of America.

``One of qualities that distinguishes all the winners is their enthusiasm; for their subject, and for people they're working with,'' says Marcia Feldman, the foundation's executive director. ``It really has influenced the students in a positive way. Stephen's ratings from his students have always been the highest.''

Herzberg's desire is for students to ``work hard, have fun,'' and be firmly grounded in both legal theory and the presentation of it.

This philosophy has been nurtured during 16 years on the Madison campus, where he has been mixing '60s-style commitment to serving the less fortunate with hard-nosed practicality.

Roscoe Pound, after whom the foundation was named, was a dean of the Harvard Law School from 1916 to 1936 and ``was instrumental in shaping American jurisprudence as we know it today,'' says Ms. Feldman. Herzberg continues in his footsteps by helping to shape the course of trial-advocacy teaching.

This unconventional teacher (he's considering wearing Reeboks with a rented tux when he accepts his award July 18) has developed television programs and films designed to explain the workings of the American legal system. He is starting to explore the use of computer-generated graphics in his trial-advocacy classes.

Kevin Spahn, class of '88, now an assistant attorney general in Chicago, says his class practiced trials, breaking them down into components, such as opening arguments, closing arguments, and instructions to the jury. ``At the end we'd have the trial, with younger students as the jury,'' says Mr. Spahn. Herzberg would videotape it and students would analyze their performances.

``The experience made me comfortable in a trial atmosphere,'' Spahn says. So far he's tried six cases, something most young lawyers fresh out of law school don't get the opportunity to do, he says.

In the '60s, Herzberg was part of a group of young lawyers who won better working conditions for the United Farm Workers. His office displays a poster of Teatro Camposino, a farmworkers' theater troupe; a Sandanista election banner from Nicaragua; and an album by electric harpist Andreas Vollenweider, autographed by all the students in one class.

In 1973, he founded the Ordinance Defense Program, in which supervised students represented poor defendants charged with misdemeanors in actual cases. That later become the Legal Defense Project, which still operates. The law school entered into a contract with the Office of the State Public Defender to handle approximately 40 percent of all the misdemeanor cases.

In 1977, working for a public television station in Milwaukee, Herzberg did the first ``gavel to gavel'' coverage of a murder trial. In 1986, he produced and wrote the documentary ``Inside the Jury Room'' as a program in PBS's ``Frontline'' series. It was the first to go into the jury chamber and watch a jury at work. That film broke down the assumptions that many people make about juries. ``We learned that jurors are concerned about justice, that they take the effort seriously, that good lawyers can give them themes in clear, strong language that they can relate to,'' says Herzberg. That film is now used in other law schools around the country.

``People tend to think of good trial lawyers as good performers,'' says Herzberg, sitting on a sloping university lawn one bright, summer day. ``Those skills are important, but equally important is the ability to understand law and theory so you can articulate it precisely. People think it's standing up and speaking clearly, but that's not what it is at all. I've spent a lot of time working on a substantive body of law of trial presentation using social sciences, film, and I try to add dimension to it through the use of computers.''

``For a long time,'' he says, ``trial lawyers have been taught a folklore, not a discipline. It's been passed down from lawyer to lawyer; great stories about how those lawyers won.'' When he started teaching, he found that the older books were offensive, full of generalizations based on birth, race, religion, profession, and gender.

``Kids in law school studying to be trial lawyers read that women acted a certain way, that professionals acted a certain way, that it was good to have a professional jury, that it wasn't good to have a professional jury. I didn't believe any of that.''

He started working with a team of social psychologists at the university to challenge the underlying assumptions that lawyers make about jury and witness behavior. The team did a study of why prosecutors had so much trouble getting convictions in rape cases.

``The old common folklore had been, get the witness crying and you get the conviction,'' he says. ``And we were saying, `Well, wait a second, we think there's another psychological dynamic going on here. If you get the victim crying, it may be so threatening to the jurors that they had to figure out a reason why it happened to her; it must have been something she did. If not, they'd have to believe it could happen to them.''

They filmed a rape trial, using actors and actresses and manipulating one variable: whether the witness cried. Herzberg says, ``It affirmed what we learned from social science, that we could get a higher conviction rate if she could say, `It was a terrible event, but I'm going forward with my life,' than if she came apart.''

``We did a lot of those kinds of things to challenge basic assumptions about behavior for which there was no empirical or scientific base,'' he says.

Herzberg also has built into the course tension-managing techniques. ``People are afraid to enter the profession because they're afraid they can't manage the tension. And there's also substance abuse as a means of managing the tension.''

Cliff F. Thompson, dean of the Wisconsin Law School, refers to Herzberg's ``rigorous pragmatism that characterizes nearly everything he does.... He forces the students to identify and strive for specific, practical goals in their presentations; and he provides them with a pragmatic critique of their performances.''

Rodney J. Uphoff, former chief staff attorney of the Milwaukee Office of the State Public Defender, was involved with hiring young attorneys. He found Herzberg grads to be superbly trained.

``Their knowledge of trial tactics and techniques, as well as their ability to perform, placed them far ahead of other students,'' he says.

Apple Computers has made Herzberg an Apple legal fellow for his developmental work in the use of computer-generated graphics as presentation tools in the courtroom.

``I really want to push the frontiers of computers,'' says Herzberg. ``You can argue your case against a computer and figure out what the possibilities are during cross-examination. You could show how a defective machine was designed or how it could have been designed. People are beginning to do that now, and I think our students should know how to do that.''