Brad Toben and Gerald Powell
Season 4 - Episode 416
It’s been called “the Marine Corps Boot Camp of lawyering” and ranked by Princeton Review as “arguably the best training ground in the nation for practical lawyering.” Baylor Law’s legendary Practice Court celebrated its 100th anniversary last year, and in this Baylor Connections, two Baylor Law faculty and graduates examine what make it so special. Brad Toben, Dean and M.C. & Mattie Caston Chair of Law and Gerald Powell, Abner V. McCall Professor of Evidence and a longtime director of the Practice Court, reflect on its impact and share stories to take listeners inside the experience.
Derek Smith:Hello, and welcome to Baylor Connections. A conversation series with the people shaping our future. Each week we go in depth with Baylor leaders, professors and more discussing important topics in higher education, research and student life. Today on the program, we are going to delve into one of the distinct programs of the Baylor Law School. If you ask any graduate about the most formative experiences of their time in Baylor Law, you're sure to hear about the school's legendary practice court. Ranked by Princeton review as, "Arguably the best training ground in the nation for practical lawyering." It's also been called the Marine Corps bootcamp of lawyering. And today, as it celebrates its 100th anniversary over the last year, we are going to visit with Brad Toben Dean and the MC and Maddie Caston, sheriff law and Gerald Powell, Abner V McCall, professor of evidence, long time director of the practice court. I've been a Baylor master teacher, both known each other for a long time. They graduated from Baylor law together in 1977 and like all Baylor law grads went through practice court, which again celebrated its 100th anniversary in 2020. Well, Dean Toben, professor Powell, thanks so much for joining us today on the program. It's great to have you come on and tell us about this great program here at Baylor.
Gerald Powell:Thank you Derek. It's great to be here.
Brad Toben:Derek. Thank you. And you were spot on and noting that practice court has this past year been celebrating its 100th anniversary to give you a sense of the importance of practice court in our program. I have always noted that when two Baylor lawyers who do not previously know one another meet, not more than a few minutes go by before they pose the question to each other, "Who was the director of PC when you were in school? Who did you have in PC?"
Gerald Powell:Hey Brad, you and I are both Baylor lawyers. Who did you have for practice court?
Brad Toben:I had Matt "Mad Dog" Dawson and the Mad Dog moniker was richly deserved.
Gerald Powell:I remember it well.
Brad Toben:Awesome, iconic in the trial bar and each morning early, he would put us through our paces. I mentioned that a moment ago that the morning, but one thing is significant about practice court. It is a six month immersive experience, and I always tell folks that it really does not have posted hours. The students get started in the early morning at about 7:45 and they are pretty much owned by the practice core program until the evening hours. Often later in the evening.
Gerald Powell:There have been times thankfully rare that we've gone past midnight. I can only remember a handful of times, but sometimes it's just necessary, and I don't know when we've got something else to do the next day. So got to get it done.
Derek Smith:I want to ask you both this. I was mentioning to you a few years ago for Baylor magazine. We interviewed Walter and Sheila Humphrey. You know their name course adorns the law school, the branch that goes near the law school to McLane stadium. And of course, when you're talking to Mr. Humphrey, you're talking about one of the top trial lawyers in the nation. And when he started talking about practice court, a change came over him. It was like he was a young man again, just scrapping trying to build a life for himself and his wife and trying to practice and do his best. And I just got a sense of how meaningful it was just from the tone in his voice and hearing him talk about how hard it was. So I want to ask you both the same thing. I want you to picture yourself, you're both here at Baylor in the mid 1970s, preparing for practice court, preparing to go in front of mad dog. Dean Toben I'll start with you and then go to a professor Powell. What's the first word or image that comes to mind when you picture your young self, getting ready for that and what it felt like for you trying to prepare.
Brad Toben:What immediately comes to mind. Derek is prayer. What proceeded in the practice courtroom and it was early morning. And I think a good deal of prayer was going up from the room because everybody was hoping that Mets finger was not going to be pointed at she to recite.
Gerald Powell:Well, actually, there's something that comes before the prayer. Brad, if you think back on it a little bit, there was absolute terror. We were youngsters. We were in our twenties, early twenties, I suppose. And just kids really. And this fellow mad dog was for real and he was one scary individual. And so you would sit there in the class waiting for him to come in and literally you'd have sweaty palms. In part, I think Derek because you didn't want to be humiliated amongst your fellow students, but in part, I think because all of us were highly motivated. Every single person there wanted to be a trial lawyer or a lawyer at least and excel at it and we didn't want to fail. And we certainly didn't want to fail in front of mad dog and have him be disappointed in us. And that's a powerful motivator
Derek Smith:Dean Toben. When you think about practice court, obviously you are preparing people to be trial lawyers and in working our lawyers in law and any number of different aspects, you're also preparing people to perform under pressure. But help us understand better what a distinctive this is for Baylor, because not everyone has something like this. And when you think of the Baylor mission and the Baylor law school mission, I know this plays into something bigger than just, "Oh, we're trying to prepare people to go be in court."
Brad Toben:There are just over 200 ABA, American bar association credit in law schools in the US and I will make a bold claim here that I can stand by and establish this truth. And that is that no other law school in the nation has a program like practice court. Frankly, over my years in this office, I have been in many Dean's meetings in which I have made an attempt to explain just how central practice court is. And I often have been met by some nodding heads in terms of, yeah, we have that. We have that. We have that, but I want to respond. No, you don't have that. You don't have a program that puts the students in a position of performing from morning to evening for six consecutive months, that teaches them how to be an advocate. Baylor law school, we have many strengths and obviously be a trial advocacy area. We're well noted for that. We also have a strong transactional curriculum, but I always make the point. Every Baylor law student goes through practice court because lawyers no matter where we are doing our work, whether it's in a board room, conference room or in the courtroom in front of the jury, you have to be able to be an effective advocate. You need to be able to put an argument in front of someone else. And even if they are not convinced, they have to look at you and think that argument is well thought out. It's been well articulated. It makes sense. It deserves consideration.
Gerald Powell:Every lawyer has a certain set of skills that are just required to do the job. And it doesn't matter what sort of lawyer you are, what the nature of your practice is. You're required to go back to the skill set, and one of the big goals of practice court is to develop those skills in every student, whether they're headed for the courtroom or not. So for example, precision in language, both oral and written is a critically important component of good lawyering. And we take these youngsters and teach them precision in the use of being wish language. Also, I think self-confidence is something that lawyers need. Honestly, a lot of lawyers probably have too much of it, but we're not going to let these students get out of our law school without having enough to go represent somebody and do a good job at it. And they're kids. I don't know. It's an amazing transformation to see these kids really who come into the beginning of the program. And then over the course of six months, they grow up and acquire a great deal of confidence in themselves and their ability to do things that they never dreamed possible. And it's literally a transformative thing. And I think that's what I enjoy most about it's seeing that transformation take place
Derek Smith:Visiting with Dean Brad Toben and professor Gerald Powell of Baylor law. And professor Powell, I want to start with asking you, obviously, as a long time director, as you described that six months immersive experience, what does it look like? If I were about to begin, if I were taking classes up to that point, we're getting ready to go through practice court program. What does the curriculum look like? And then could you also take us inside? How do you make it so realistic? How do you make it where students feel like okay, this is real, I'm here. I'm representing someone and the stakes are high.
Gerald Powell:Okay. If you think of the hardest undergraduate classes that you ever took, maybe pick the three most difficult, the most intellectually challenging classes, the ones that you really had to think long and hard about before you can begin to master the material. And you combine those into one class, and then you add on top of that, the component that you have to stand up every day in the classroom and in the courtroom, and be able to articulate what you know, in a way that makes sense, not just makes sense, but persuades another individual that you're right. And do that in a way that instills confidence in your client, that he or she made the right decision in hiring you. You put all that together in one package and that's practice score. It's like stepping into a hot furnace and you're immediately hit with a blast of hot air in the face. And, you know boy, I better get ready. This is going to be the most challenging thing I've ever done in my life. And I think for most of these youngsters it is. Of course, many of them, it's not, we get a good many veterans. We get some people who have had life experience and they don't really have the same trouble that 20 somethings who have never really done anything in life other than go to school with, you know they just have a tougher time with it. But honestly, part of what's going on is these young lawyers have to grow up rather quickly. In a matter of months, many of them will be collecting a fee to provide professional legal services to ordinary folks. Some of them will be standing in front of juries, defending a person against a criminal charge facing imprisonment, perhaps. And that's a great deal of responsibility. You've really got to grow up quickly. And so the practice court, I think helps you do that. You have to grow up quickly if you're going to survive in practice court.
Brad Toben:Derek. One of the experiences that the students may have in practice court is called getting memoed and getting memo means that on top of the voluminous reading that is involved each evening, sometimes up to a couple of hundred pages, if you're called upon in stand and are unable to satisfy the instructor with your response, you will be memoed meaning that in addition to that day's assignment due tomorrow, you will be given a research problem to do as well. A lot of peer pressure is involved because sometimes getting memoed means that not only do you who have not produced as you are expected to produce, get the memoed but all those in your row may be memoed-
Gerald Powell:Or sometimes the whole class. Particularly egregious a class memo is not unheard of.
Brad Toben:A great deal of peer pressure.
Derek Smith:Wow. When you talk about making it realistic and feel real, I got to think a hundred years in practice court has become so legendary. And some of that when you talk about the pressure is some of that just self perpetuating because it has such a reputation that it may be even long before they step in there, like your students know, is that part of it?
Gerald Powell:Absolutely. When they set foot in the law school in their first years, they start hearing stories because there's a senior class in practice court that quarter, and they're coming out of it every day and telling about what happened and what was going to happen the next day. And the stories grow in the retailing. And so by the time those entering students get into practice court, two years later, they've heard it all and they can't imagine it being any worse than what they've heard. And then they find out it is.
Derek Smith:This is Baylor connections. We are visiting with Brad Toben, Dean of Baylor law and the MC and Maddie Caston sherif law along with Gerald Powell, Abner V. McCall, professor of evidence, long time director of the practice court. And as we mentioned, hundredth anniversary of practice court here at Baylor's began in 1920. So we're actually a little bit a year past that first step of that hundredth anniversary. But I want to ask you. Dean Toben, I'll start with you. How did practice court get started? What were the roots of that in becoming what it is now?
Brad Toben:Derek that is a question probably best directed at professor Powell. He is quite the student of history and I think that he can give a very good rendition about how a breakfast board came about and how it's been integrated these past many decades into our program. Gerry?
Gerald Powell:The law school went out of operation in the late 1800s, as you may know of because there was a new law school that came along down in Austin and folks thought that we only needed one law school out here on the Texas frontier. But then we found out pretty quickly that we needed more than one. And so it was in 1920 that practice court in the revive law school had its origin. And it goes back to a judge. He was a court of appeals judge here in Waco at that time named James P. Alexander and the university asked him to come in and teach in the law school. And he was a graduate of that other law school down interstate 35 verifying law school. But he knew that he didn't really learn in that law school, what he needed to know to start practicing law. And his father apparently asked him to visit with somebody who would be one of his first clients and judge Alexander discovered he had no idea what to do with a client. He knew a great deal about the theory of the law, but he didn't know how to put it to use for a human being. And so right away, he decided that what Baylor needed to do was to teach lawyers to actually represent people. It's a service profession as Dean Toben finds himself I think saying over and over again, we're in the legal profession to serve our clients. Well, if you don't have any idea how to do that, it makes it a very hit or miss affair and who would want to be the poor client that's gone to the lawyer who was learning how to do it. So judge Alexander put together a program to teach both the theory of the law and the practice of the law and put it into one package and turn smart students into smart lawyers.
Derek Smith:It sounds like the roots from that very first class in 1920 had to have stayed the same over a hundred years. Are there ways that you could say from your own experiences or just from your own study that you know, where it stayed the same, or are there ways it's evolved as well over the years?
Gerald Powell:Absolutely. Practice court changes with the times always. Because the practice of law changes and the practice of litigation, the trial cases changes. So in ways that you never dreamed possible. For example, during the pandemic, we have been teaching remotely using technology sitting in front of a computer screen. And some of what we teach them is how to represent clients in court, sitting in front of a computer screen with the judge on your monitor. And so we do what we call zoom trials. Now, hopefully there won't be many of those in the future, but I think what the courts and the legal profession have found in this pandemic is that some of that is awfully useful. If you can imagine the savings to a client. If we have a case Derek, you and I were opposing lawyers and you lived in Dallas and I lived in Houston and the case was in El Paso. And we had a hearing before judge Toben. It was a hearing on an important matter, but it would only take 15 minutes. You and I would both have to travel to El Paso and probably spend the night and be there for 15 minutes. And then our clients would pay thousands and thousands of dollars for that. And now I can you know and just like you and I are doing right now. And so that part of litigation practice is something brand new while we're teaching. Who would have thought 10 years ago, that we would be teaching our young lawyers how to address a court and argue a legal point to a judge on a computer monitor. We change, we adapt, we do whatever's necessary to get them practice ready.
Brad Toben:Fortunately during the pandemic, in terms of practice court classes, the morning classes, early afternoon classes that deal with evidence and procedure, we have been able to privilege the practice court program by having the class meet in person. And I want to call out here for a moment first Methodist church in Waco, because they have given to us the use of the very cavernous sanctuary at the church, which has allowed our practice court students to be in class in person, but yet socially distance mask.
Gerald Powell:There was not a classroom large enough Derek on the whole campus to fit our practice court class last fall. It was an anomaly really that we had a class that size and it was a perfect storm because it came through the pipeline during the pandemic when we had to socially distance. And so we had to find a place and first Methodist was great to come to our rescue. So ironically, I found myself teaching literally on the very place where I was married so many years ago.
Derek Smith:Wow. That's a great tie and I guess if you need a reminder that your services to a higher calling, a church is a good place for that doing?
Gerald Powell:Absolutely. The first day of practice court in the fall, the pastor came in to greet everyone. And so we started practice court with a formal prayer. Normally it was a silent one, probably many silent ones, but that day we started practice court with a formal prayer.
Derek Smith:That's great.
Brad Toben:A sanctuary has very warm memories for Gerry and his sweet wife, Barbara, because they were married there, but it will not have the same type of memories for the practice court students.
Derek Smith:Sure. Visiting with professor Powell and the Dean Toben. And as we head into the final few minutes, I want to ask you, and I know this is probably a very broad question because so many people play in, but whether it's in a pandemic or not, what type of team team work does it take within the law school to pull off practice court in a given year?
Gerald Powell:We've got a really wonderful team. I think in the old days when mad dog taught practice court, it was pretty much just him. He had a little bit of help, but it was pretty much just him. And we do so much with the students now. And it's so time demanding that we've had to have had more help. So we have three full-time faculty members teaching practice court, and one part-time faculty member helping out too. So a lot of the time is spent in the courtrooms. But we have three full time faculty members who teach the classroom part of practice court, which is heavy duty doctrinal law. It's not a soft stuff. It's not how to stuff. It's not easy. And it takes three people to do what mad dog did when Brad and I were in practice school. Just so you'll know the people who are involved in it now. And I'm excited that they got the program now and we'll take it forward the next few years, the director of our breakfast court program is a tremendous trial lawyer named Jim Moran, who practiced in Waco for many years. And joining him are professor, Jeremy Counselor, a former student of mine, he's actually taking over my class. He's actually teaching it literally right now as you and I are talking. And he's just smart as a whip. And then Liz Fraley is an experienced trial lawyer, the first female practice court professor that we've ever had. And she's tried many, many cases primarily in the Dallas and Austin areas. And then our final member of our team now is professor Robert Little, who was a partner at the name and how, a law firm here in Waco. And he's the director of our trial advocacy program primarily, but also helps with the trials in practice court. So we have a heck of a fine team. Derek. I'm really proud of them.
Brad Toben:Derek, it's a powerful team as Gerry notes, but I also want to note here, the point of personal and professional sadness, Gerry is retiring as of July. And he is one of a very small member of university, Baylor university faculty who have carried the moniker of mastered feature. And it is a moniker, a title that is originally deserved by Gerry. And I am hopeful that Gerry will still be appearing in our court brains in the afternoon and in the evening because he has such a rich, rich sense of what it means to be a trial lawyer. And I want to see him continue his work, even in his retirement, as he feels led. And I've told him because he's a longtime friend that I'm going to make sure that he feels so led.
Derek Smith:That's good. Well, professor Powell, congratulations on your appended retirement. But yeah, hopefully we get to see around campus and the Brazos river banks here, as often as you want to be there.
Gerald Powell:You bet the pasture is close by.
Derek Smith:That's good. As we wind down, I wanted to ask you a hundredth anniversary, obviously 2020, not the necessarily picture perfect year to follow through on plans of celebration, but what are some of the ways that the law school has really connected alumni through the generations to celebrate this anniversary over the last year?
Brad Toben:We've done it virtually Derek. We have had a lot of programming available to our graduates. And of course we have publications that go out both electronically and hard copy to our graduates. We have made sure that even though the timing was not what we would have preferred that as is the case with everything we do at the law school, we teach our students to make it happen. And I am so proud of my faculty and staff team because they have made it happen, including the virtual celebration of the 100th anniversary.
Derek Smith:That's great. Well, happy-
Gerald Powell:We have one of the ways that we've celebrated is they created a t-shirt based on an old saying around the law school that goes back decades. That Baylor is a place where fun goes to die. And so the t-shirts says practice court killing fund for a hundred years.
Derek Smith:That's great. Well, if that's how we end it, that's a funny way to end it. But I know obviously the way the impact of practice court has been pretty incredible over the years in preparing students who live out the mission and represent clients at the highest levels of integrity and skill. And it's been a lot of fun to have you guys here over these last few minutes, sharing together and that 40 some years of institutional knowledge you have together as classmates at Baylor. I appreciate you sharing that with us all today.
Brad Toben:Thank you, Derek.
Derek Smith:Been a lot of fun. Thank you so much. Brad Toben, Dean and MC and Maddie Caston sherif law and Gerald Powell, Abner V McCall, professor of evidence and longtime director of practice court. Our guests today on Baylor connections. I'm Derek Smith reminder. You can hear this and other programs online, baylor.edu/connections, and you can subscribe to the program on iTunes. Thanks for joining us here on Baylor connections.