The rapid pace of advancements in computer technology is changing legal education. Electronic casebooks, electronic discussion groups, and course web pages are becoming common. Virtual classrooms and, indeed, virtual law faculties are now feasible.

At the same time that technology is changing, the methods of legal education are also in transition. Both the lecture method and the Socratic method are attacked as being inadequate to equip lawyers to face the challenges of the 21st century. Critics argue that while the traditional methods are effective in teaching legal doctrine they fail to teach other skills necessary for effective lawyering, particularly problem solving. In this literature, the concept of problem solving is understood broadly to include attention to the "roles of values, interests, problem prevention, interdisciplinary analysis, creative thinking, and self-reflections".

Drawing on the experience of creating and teaching an evidence course on the World Wide Web [Web], this paper will discuss the design of Web-based law courses that emphasize problem-based learning and will provide information that may be useful to others who have implemented or plan to use a Web-based approach.

This paper describes a Web-based course on the law of evidence, Evidence Law 470, developed by Marilyn MacCrimmon and Christine Boyle, professors in the University of British Columbia Faculty of Law with technical associate James Kim. This course, taught in the fall of 1996 and 1997, is one of the first law courses to be taught almost exclusively over the WWW.

The terminology for various uses of the Internet for legal education is in a state of flux. Frequently used terms such as virtual classrooms, discussion rooms, and computer-assisted education do not have a uniform meaning. For instance, the term virtual classroom can refer to anything from an a general online discussion group in combination with live lectures, to a course taught exclusively on the internet which does not use any hard copy references. This virtual class may or may not be taught to students in different locations and, or affiliated with different educational institutions.

Evidence Law 470 comes within the more restrictive definitions of a virtual classroom in that it was taught almost exclusively over the Web. Except for the first class meeting to deal with administrative matters and one meeting with each student to discuss their first exercise for credit it was taught exclusively on the Web. There were no live lectures. Not all the materials were on the web. We used a written text, not an electronic one, and handed out a hard copy of the course requirements. Although all the students were enrolled in the Faculty of Law, University of British Columbia, they could access the course from anywhere and at any time. One student was located at a "distance", taking while enrolled in an exchange program in California.

Legal education is undergoing the same evolution towards problem based learning as has been experienced by other professional schools such as medicine and business. One of our primary goals was to explore the ways computer technology and particularly computer conferencing can facilitate problem-based learning by providing an opportunity for the application, analysis, synthesis, and evaluation of knowledge.

The law of evidence is an area particularly suited to a Web format that features computer conferencing. The course is generally seen as difficult and labour intensive and complex in terms of both legal doctrine and policy. Evidence problems require students to think carefully about the process of inference. Time for reflection is essential. We hypothesized that on-line discussion rooms would permit reflection and provide the opportunity to practice problem solving and the application of legal rules. Access to the World Wide Web would permit links to a range of information such as case law, statutes, legislative debates, news reports and trial transcripts. The topic of evidence can be viewed as an interface between law and other disciplines. A course on the Web would permit easy access to research in a variety of disciplines, particularly the social sciences. Evidence is also a subject that has routinely drawn on problems as a tool of instruction and, therefore, we thought that a course on evidence would fit well with the Web format.

Evidence Law 470 is a compulsory upper year course that, in its lecture format, meets 4 hours a week for 12 weeks with an enrolment of about 65 students. The Web version of the course was taught twice—in the fall of 1996 and in the fall of 1997. In the fall of 1996, there were 20 students enrolled and in the fall of 1997, 32 students. In each course there was also a judicial decision maker who audited the course. The two instructors received credit for teaching 1/2 of a course.

The initial impetus for developing the course was a presentation by Linda Harasim of Simon Fraser University in May, 1996 demonstrating a "virtual university". She described the Virtual-U, a multimedia, online learning software system made up of various integrated components. These components allow instructors to set up on-line course conferences, structure and organize online materials, and provide ongoing management of their course. We were particularly intrigued by the use of computer conferencing in the virtual classrooms. This seemed to be a particularly effective way to teach problem solving and, in addition, we thought that a course on the Web would facilitate access to legal education of part time students, non-traditional students and groups with home responsibilities such as single parents.

The design of Evidence Law 470 relies on two major features: study notes and discussion rooms. The study notes, which include links to relevant materials in conjunction with a written text, provide the basic knowledge. Throughout the study notes are links to discussion rooms where students analyze and discuss problems and exercises. A discussion room is a forum on the Internet for electronic communication. We did not want to exclude those students who did not have access to state of the art computers and therefore we kept the design of the course simple in order to keep the computer requirements to a minimum. The computer laboratory at the Faculty of Law was inadequate to support the course and therefore, students were expected to have their own computers. However, a workstation was set up in the Faculty of Law to provide access to the course by a few students who did not own a computer.

The discussion rooms in the fall of 1996 used a program called HyperNews, which allowed threaded discussions (which are grouped together by topic for easy reading) and multiple forums. HyperNews is a freeware UNIX program originally created at the University of Illinois at Urbana-Champaign.

In the fall of 1997, a different software program, Microsoft FrontPage 97, was used to create the discussion rooms. Other improvements included the use of HTML forms for self-guiding multiple-choice questions, and experimentation with video material in QuickTime format. In both courses, students were assured confidentiality and access was limited to those with an identification code and password.

In the first year, we received financial and administrative support from the Faculty of Law, the Centre for Education Technology and the FLAIR Project of the Faculty of Law. The University of British Columbia, Teaching and Learning Enhancement Fund and the Faculty of Law provided funding for the second year.

The course was divided into 11 topics. The topics were opened and closed sequentially as we moved through the term. When a topic was "closed", the instructors would no longer "be" in the discussion rooms and entries by students would not be taken into account in their mark. Other than that, the study notes and discussions remained on-line.

The interested reader can access a shortened version of Evidence Law 470 at http://orson.flair.law.ubc.ca/zero entering the user name "Visitor" and the password "shalott". This mirror site reproduces selected study topics. Due to confidentiality concerns, the discussion problems have not been reproduced in the discussion rooms and student comments have been deleted. For the purposes of this paper, the entries in one of the discussion rooms, "Lightning Strikes the Clock Tower" in Topic 6B, can be accessed. In order to preserve confidentiality, the names of the contributors have been deleted.

The study notes are coded in HTML, taking advantage of elements such as tables and frames to enhance the usability and flexibility of the course. For example, using frames allowed the main course sections to be available at all times on the screen. As well, a student could click on the appropriate icon and jump directly to the glossary or to the list of readings for a particular topic. We deliberately used the term "study notes" with a view to furthering a sense of a cooperative enterprise. There was one "visiting" expert who posted comments about litigation in aboriginal rights cases.

The components of the design of the study notes that we think were most effective were: 1) ease of navigation, 2) the announcement page, 3) the email list of students and instructors, 4) links to a variety of materials, and 5) the glossary. Ease of navigation is essential. Participants must know where they are and how to move quickly to where they would like to be. An announcement page updated frequently, which came up when the site was first accessed, permitted us to keep everyone informed about recent events, upcoming deadlines, etc. The email permitted the participants to carry on a conversation with specific individuals and to contact the instructors privately. The possibility of creating links to a range of information is, of course, one of principal advantages of the Web. The links to case law meant that we did not produce a hardcopy casebook. As the quantity and quality of relevant information on the Web increases, as appears to be happening at an exponential rate, the linking feature will play an increasing important role in Web-based courses, but the danger of information overload should be kept in mind. Too many links may cause students to pay less attention to the interactive discussions. The glossary, while a good idea, proved to be very time consuming and is something to be more fully developed in the future.

There were some things missing. We choose to communicate information about the roles of instructors and students and net etiquette in the first session in which we met with the students as a group. I think this was effective, but I would also put information about roles and net etiquette on the Web site. This information should include a description of the roles of the instructors and the students and how they differ from their classroom roles. In our talk with the students, we said something along the following lines about differing roles:

We also emphasized that the discussions were to be used as a knowledge base of ideas and information on which the students would build their understanding of the law of evidence. We also talked about the form of entries, advising students to keep entries short and limit them to one point plus examples. Short entries are less intimidating for the students and are more likely to generate a conversation.

Some introduction to the ways that communication through text on the Web differs from in-person communication is necessary. Here again, I would put this on the Web, even if it were also communicated orally to the group as a whole. There are several useful guides on the Internet, but I would add a personal introduction by the instructors.

Time for reflection is an important part of the learning process. The challenge in the traditional lecture class has been to provide sufficient opportunities for this reflection. Computer conferencing provides this opportunity. What I mean by computer conferencing is a "form of group discussion that uses text messages stored on a computer as a communication medium." I am confining my use to text based messages although the possibilities of voice-based conferencing or video conferencing should not be forgotten. Andrea Johnson concluded after teaching an Internet course that videoconferencing was an effective medium to learn and exchange ideas. We did not have the technology to support videoconferencing and its use would have made it impossible for a majority of students to participate in the course. We used the term "discussion rooms" to refer to the computer conferencing modules in our course.

Discussion rooms on the Internet can take a variety of forms. They can be confined to discussions generally about, for instance, a specific course or each discussion room can be developed to a single problem or exercise. The discussion can be moderated or unmoderated. The discussion rooms in Evidence Law 470 each contained a specific problem or exercise and were moderated by the two instructors. Each topic also contained a meta-discussion room where students could make general comments about the topic, course, suggest changes, identify problems, etc.

Generally, we found that the use of moderated discussion rooms that focused on a specific problem or exercise furthers the following objectives:

• Provide students with the opportunity to practice problem solving and the application of legal rules.
• Increase the proportion of students who participate in class discussions.
• Provide flexibility in the timing of participation for both the students and the instructor
• Facilitate discussions between students.
• Provide opportunities for students to ask questions and raise issues at any time.
• Focus on the application of information rather that the communication of information.

As noted, we utilized different conferencing programs in the two courses: HyperNews and Microsoft FrontPage 97. A snapshot of a discussion room from each conferencing program is shown in Figure 1 (HyperNews) and Figure 2 (Microsoft FrontPage 97) reproduced in Appendix II.

Drawing on a list of attributes of conferencing programs developed by David Woolley and the experience of teaching a Web-based course, here is my assessment of what to look for in a conferencing program.

In summary, of the characteristics of two conferencing programs used in Evidence Law 470:

	Microsoft FrontPage97	HyperNews
Price	Costs about $80 CDN (educational price)	Freeware, available from http://www.hypernews.org/HyperNews/get/hypernews.html
Operating system support	Base program only works on Windows 95, 98, NT "Server extensions" allow FrontPage websites and fora to be run on other operating systems (Unix, Macintosh)	Requires a Unix-based server, does not support other systems
Compatibility with other environments	Only viewable through a web browser	Only viewable through a web browser
Administrative capabilities	Moderately easy to install FrontPage Relatively easy to maintain and create fora – however, fewer possibilities exist as obvious "menu options," e.g. deleting messages	Requires greater initial technical knowledge to install Relatively easy (with appropriate addresses and passwords) to maintain and create fora Somewhat easier to maintain users and groups
Browser support	Supports any browser but best viewed through Microsoft Internet Explorer 4	Supports any browser
Customizability	Large variety of "themes", backgrounds, fonts, and other methods of presentation	Fewer options available – can change background colour

Before looking specifically at the exercises and problems in Evidence Law 470, I would like to examine briefly at the problem solving method. Derrick Bell defines the skill of problem solving drawing on a cognitivist paradigm. "Expertise in problem solving is the ability to make the best individual decision about a specific issue, together with a superior ability to consider the "global" consequences of each decision as their consequences are carried forward through time and in interconnection with other decisions." Acquiring such skill requires practice in solving a variety of types of problems.

The problems and exercises in what is termed "problem based learning" can take a number of forms. The problems can range from those that focus the issues rather narrowly, as is common in law courses on evidence, to ill-defined problems more akin to case studies in business schools with for instance, a memo setting out the problem, information in various forms, links to further information, etc. The problems should resemble those faced by lawyers, and presented in the context in which lawyers encounter them. The form of problems should, in my view, strive to fulfill the goal identified by Peggy Davis:

The problems and exercises in Evidence Law 470 fell towards the structured well-defined end of the spectrum. They included hypothetical factual situations designed to provide an opportunity to learn and apply legal concepts and theories about the process of reasoning about facts, to practice looking at a problem from a variety of perspectives and to generate legal arguments supporting that perspective, etc. We also included problems designed to raise questions about the role of law in society, the policy implications of a legal interpretation, and issues about the processes of lawyering and judging.

Methods that teach problem solving include repeated practice of skills, learning in context, active participation, and role playing. Techniques for facilitating problem solving in class include having students jot down their thoughts or bring written responses to class to discuss in small groups. Breakout groups--small group discussions in which students can speak more comfortably and develop ideas that can then be discussed in the larger group are also recommended. Computer conferencing seems well suited to these methods of learning in that it appeals to broader group of students, permits students to compose in private and in their own time, addresses a broader range of subject matter, and facilitates analysis from variety of perspectives.

A key aspect of computer conferencing is the change in the roles of students and instructors. mauri collins and Zane Berge list some of the changes in these roles when computer conferencing becomes a major feature of the teaching-learning experience. Most importantly, the relationship between the instructor and the student can change. The instructor as moderator can transform their role from that of an "oracle and lecturer to consultant, guide, and resource provider".

There are now a number of articles on how to be an effective moderator in computer conferences. The functions of a moderator have been divided in different ways. One taxonomy is: pedagogical, social, managerial and technical. I propose to look at the organizational role, social role and intellectual role and relate how we attempted to fulfill these roles.

In their organizational role, Berge recommends that the moderator must set out the agenda at the beginning of the course and remind participants of this agenda during the course. This requires the moderator to communicate the objectives of the discussion, the timetable, the procedural rules, and the decision-making norms. In the single group meeting of Evidence Law 470, we set out the objectives of the course, the schedule, and methods of evaluation. We also demonstrated a sample discussion of a problem. In future courses, this information would also be put on the Web site. At the start of each of the 11 topics, we set out the objectives for the topic, told the students what to expect, and set out the schedule and the activities. As noted, an announcement page that comes up upon accessing the site helps to keep everyone up to date.

In their social role, Berge recommends that the moderator create a friendly, social environment for learning. We sent welcoming messages at the beginning, and tried to encourage participation throughout by providing feedback, using a friendly, personal tone, humour, etc. The students introduced themselves at the group session, but did not do so on-line. I would expect that on-line introduction would facilitate communication and foster the creation of community. I would hesitate before putting photographs of students on the Web site. One of the advantages of text communication is that the user is abstracted from their race, age, class, and possibly gender. Such abstraction may minimize stereotypical expectations about behaviour and may operate to encourage participation.

In their intellectual role, the moderator should adopt the role of facilitator not the expert. She should focus the discussion on crucial points, ask authentic questions, probe responses to encourage students to expand and build on comments, synthesize points, build upon and develop themes, link to literature and the topic, identify unifying themes and points of disagreement. In the problem solving mode, she should model the qualities of a scholar or lawyer and model the concepts in practice such as the formulation of arguments.

We saw our role as facilitators and not as founts of knowledge. We encouraged exchanges between students and entered the discussion only to provide some initial structure, expand the perspectives, focus the discussion, add humour, etc. At the close of every discussion room one of the instructors would answer the questions "Where are we now?" This entry would summarize the points made by students, provide positive feedback for good work, and model an approach to the problem or exercise, by for instance, suggesting arguments from different perspectives, etc. Appendix I reproduces one of the discussions along with a commentary about method.

The course was divided into 12 topics. The topics had a varying number of discussion rooms--"Witnesses" had several; "Opinion" only one. Participation in the discussion rooms constituted 20% of the final grade. Five per cent of the 20% was allocated for regular participation in the discussion groups, which was defined as two entries to each topic. The only criterion in this category was that the entries must be courteous and relevant to the topic. Fifteen per cent was allocated to the quality of the contributions. We identified a list of factors we would take into account; factors which encouraged the development of a joint problem solving community.

Although the requirement of two entries in a discussion room for each topic appears low, we found that it was sufficient to encourage participation. Once students got over their initial reluctance to participate, they often contributed more than the minimum.

Eighty per cent of the mark was based on a mid-term exercise for credit (30%) and a final examination (50%). There was one practice exercise that students could choose to complete and discuss with the instructors. Since the examinations were not done under supervision, there was a possibility a student would not turn in their own work. As a partial solution, we required that each student must meet with one of the instructors to discuss the first examination. The problems posed by examinations on-line remain to be worked out.

Overall, our impression is that the courses were well received and effective. As stated by Boyle, MacCrimmon and Kim in their review of the 1996 course:

Our experience teaching the course the second time with 30 rather than 20 students was similar. The student feedback was very positive and the instructors found teaching the course a very rewarding experience. We did not find the interaction with students to be impersonal, but to be friendly and stimulating. Students liked many aspects of the course: the on-going evaluation and the necessity of keeping up with the reading and the discussions, self-pacing through each topic, the flexibility in class timing, the ability to work at home, the ability to review class discussions, and the time for reflection.

Student comments indicated that a web-based course with discussion rooms appeals to students who feel more comfortable with self-directed learning and the problem solving method. Student reactions to the course fell roughly into two categories. First, there were those students who wanted more direction from the instructors. These students wanted more structure to the discussion, more feedback from the instructors and a clearer indication of whether they were "getting it right". Second, were students who liked the Web-based course because they were encouraged to think on their own, pushed in the right direction at the right time, given an opportunity to practice applying the law to the facts, and provided with examples that helped them to learn. These students liked the discussion rooms and thought the discussions examined a variety of arguments. These students thought that they were learning the subject matter gradually but steadily, and dissecting the subject matter more thoroughly with the help of others' ideas and thoughts.

Most students thought that the on-line discussion rooms encouraged discussion. One student concluded, "I was more able to discuss in this format because of the opportunity for reflection and the absence of the pressure to express my opinion in a span of a few minutes that exists in an actual classroom." Another thought that the human interaction came through and permitted ""Devil's Advocate" arguments without getting the "evil eye" from class mates." However, some said they missed in-person meetings and the immediate feedback to performance provided by such interaction. This indicates that video-conferencing when it becomes technologically more accessible may prove to be an integral part of Web-based courses.

Changes recommended by the students include a limit on the length of contributions, and more individual encouragement (this might mean use of individual emails to students discussing their progress).

The course was not set up in a manner that would allow for a formal evaluation of whether the students did any better in this teaching format, but our impression was that class discussion tended to be much better than in an in-person class and the answers to the two examinations were on average more sophisticated.

In conclusion, the reaction to use of on-line discussions was very positive, but it also appears that there seems to be some resistance by some students to moving to a less hierarchical relationship with the instructor and a less directed method of teaching.

In the fall of 1997, we created an on-line self-guiding multiple-choice questionnaire. After answering a question, students could check their answers automatically. The questionnaire was written using a combination of HTML forms and frames, but not CGI script. A script was not necessary because there was no interactivity involved, such as keeping track of how many questions the student got correct. Since the questionnaire was only for review and wasn't being marked, this wasn't necessary. The self-administered questionnaire permitted the instructors to ask inauthentic questions (questions to which the instructor knows the answer) and permitted students to test their knowledge of basic information and doctrine without being evaluated. While this exercise was popular with the students, we found it difficult to think up questions to which there is a "right" answer.

We also experimented with a video presentation on the use of computer simulations as evidence. The video was transferred from a standard VHS videocassette in flattened QuickTime format, allowing it to be played on both Macintosh and PC computers. It is a 92Mb file and about 7.5 minutes long. As the video was too large to download conveniently via a modem, it was available to students on the workstation computer. In future, it may be possible to offer shorter video segments for download (say 1 or 2Mb) at various points in the study notes.

We found that technical assistance both to create the course and to assist the students during the course was necessary. Neither instructor has extensive technical knowledge. I have been interested in the relationship of computer technology and law since the mid-1980's working, for instance, on an expert system on the hearsay rule. I have knowledge of various software programs, but am not a programmer. Christine Boyle has basic word-processing skills. We therefore could not have produced the course without the technical assistance provided by our technical associate, James Kim. He has an extensive background in computers and, in addition to doing all the technical work, was the designer of the screen layout.

The necessity of access to technical expertise may become less of a deterrent in the future. As law schools make more use of computer technology, it should become standard for the staff to include a person whose role is to provide technical support for a number of courses and a variety of utilizations of computer technology.

Our experience indicates that Web-based courses are not only feasible, but desirable for law subjects, especially evidence. Web-based courses allow easy access to case materials, journal articles, government publications, social science materials and other relevant information. They can facilitate communication and discussion without the problems associated with face to face interactions. Students have time to think about issues raised by the instructors and other students. A course can be designed so that technology facilitates the learning process rather than hinders it.

This discussion room sets out a fairly simple fact pattern and asks whether the evidence is admissible. There are 13 entries not counting the instructors. One student makes two entries. The text of the discussion room is reproduced at the end of my commentary. The headings are the topics chosen by the participants and the students are identified by initials.

R.S. jumps right into the problem and applies two criteria of admissibility without setting out the rule. This conversation is simply part of a larger one that includes the study notes and the other discussion rooms.

AC responds to R.S. and refers to a leading case and asks whether a newspaper reporter is analogous to the nurses in the leading case. The entry is informal and uses parenthesis to indicate an internal thought of the student.

MC responds to AC continuing on the issue of sincerity, and broadens the context by looking at the practice of journalism. She also raises another issue: relevancy.

KS starts another main topic and moves to the question of probative value. She picks up on MD's statement as to why the evidence is relevant.

This entry is slightly confusing in that the student does not state how his point relates to the issues.

At this point the moderator steps in to add some structure and encouragement. She uses the first name of KS and provides positive feedback. She then reviews some basic principles. Note that she does not simply pose a question, but models an approach (e.g., identify the underlying generalization) and asks for their feedback. She then places the comment of JP in context.

KA begins a new topic and seems to ignore the contribution of the moderator. She draws an analogy with the leading case and does a more sophisticated analysis relating relevance, reliability and necessity.

R's contribution does not advance the discussion very far, but his entry provides him with an opportunity to compare his answer to others.

S.O. is a former reporter and here she draws on her background in making a contribution. Her personal experience causes her to focus on the context and the underlying assumptions--to what extent does or should professional status enter into admissibility decisions?

Brings in the institutional context and asks whether the rules should differ depending on whether the case is civil or criminal. Provides a positive feedback to KS above

The moderator after some humour in response to the last entry, summarizes the points made by the participants. She models an approach in which the arguments for and against admissibility are set out.

One of the objectives of the course was to teach students to be articulate the underlying assumptions. Here the moderator praises those who have done so and suggests some images of her own that might affect judicial decisions.

AK does not want to end the discussion and renews the discussion.

P. continues the conversation and focuses on a point not given much attention earlier--the best evidence principle and argues that if evidence of the fire exists that can be cross-examined it should be preferred.

P continues his point.

CB responds to P pointing out by demonstration that he should look at both sides of an argument, noting that authority and principle support the argument opposing his position.

DS was taking the course while in the United States. Drawing on his location he informs the group about the results of the US decision. Here it seems a student is taking on the role of instructor.

The moderator closes the discussion with encouraging words and adding a Canadian perspective on the contribution of DS.

The following is the text of a Discussion Room. The Headings in bold are the topic headings entered by the participants. The students have been identified by initials. (Spelling errors have been preserved to help convey the informality and spontaneity of the communications.)

Let's look at a U.S. case. The clock tower of the Dallas County Courthouse collapsed in 1957, causing extensive damage. An examination of the debris showed charred timbers. Dallas County was of the view that this was evidence of lightening having struck and that lightening had therefore caused the collapse. The Commercial Union Assurance Co. took the view that the collapse was due not to lightning but to structural weaknesses caused by a fire in 1901. Should a newspaper clipping from a Dallas newspaper dated June 9, 1901, describing a fire in the courthouse, be admitted as proof of its truth?

The newspaper report would appear to be necessary, given that there is probably no other way to determine if there was any structural weakness caused by the fire. There does not appear to be any problems with insincerity.

Reliability, however, may be a problem in the sense that the newspaper report is not a specifically reliable source of information on structural weakness. There may not be any accurate perceptions as to the degree of structural damage and whether or not the clock tower was affected.

If I was trying to have this evidence rendered inadmissable on the basis of hearsay I would certainly argue that sincerity is a problem here. In Ares v. Venner the court noted that sincerity was not a problem because the nurses were subject to disciplinary procedures. What disciplinary procedures would an inaccurate reporter be subject to, especially in 1901?

What I am getting at here is that the clipping (assuming it could be proved to be a valid one from 1901) may have problems with sincerity because there were not as many regulations or sanctions on news reporting in that era as there are today. (WHOA, here I am claiming that news media today is regulated and, dare I say it, honest. Somebody get me a doctor).

The reporter could have fabricated the whole story so that his friends could collect insurance money for a fire that never really happened or that was not as serious as it was reported to be. For all we know the owner of the paper could be the owner of the building too.

I realize these are longshots but I wouldn't jump to the conclusion that sincerity doesn't seem to be a problem if I was handling this case.

If I were arguin that the newspaper article should be admissible I would point out the article ought to be admitted as proof that a fire occured in 1901 damaging the clock tower. This article could be characterized as an historical account of a fact in issue. I would point out that newspaper accounts are a common and valued source of historical events. While it is true that journalists may in some cases pander to readers, I don't think anyone would seriously argue that the journalist covering the 1901 fire made the whole thing up. As to the details of the damage reported in the article, I don't see why that should affect the necessity of admitting it. Wouldn't it be more useful to say that the article should be admitted and the trier of fact is free to believe or disbelieve it?

With respect to reliability requirement I would also argue that this is satisfied. The article was presumably written in a respectable paper of the day (not the Globe or National Enquirer!) and a journalist would have little motive to falsify the facts. In addition, reporters are in the business of "getting the facts" and that to me seems analagous to the nurse in Ares v. Venner.

The newspaper report would only assist with historical background that there was a fire, but could not be used as proof of structural damage. The judge might not give it much probative value, if admitted, and since it doesn't really go to prove a fact in issue, I'm not sure it would be admitted under the necessity principle of hearsay exceptions.

I'm gonna agree with [KS] on the reliability side of things. Even if the reporter covering the fire was a certified engineer and the article covered structural damage, surely engineering knowledge re structual weaknesses had advanced considerably in the 56 years between the fire and the collapse. Surely this would weaken the reliability of the article.

... On the other hand it nonetheless seems unlikely that a fire could cause a collapse 56 years later! But then again, the people claiming this are an insurance company and stranger things have happened.

Good point [KS] to remind us to think about the fact in issue. This might be a good place to do some review of basic principles. [KS] suggests that the fact of a fire does not go to structural damage. This seems to be a relevance point so we could ask what generalization links fires and structural damage. Something like "buildings on fire sometimes suffer structural damage" would occur to me. If that makes sense then the fire would be relevant. I think then [JP] is discussing weight or probative value. Certainly the fact of a fire in itself might not prove damage, but that depends on what you think the generalization should be "buildings rarely, sometimes, often suffer structural damage"?

In terms of necessity, admission of the newspaper clipping would seem to be necessary as there appears to be no other form of evidence available to assert that a fire happened- a fact in issue. However, with regards to reliability, I would agree with the others who question the trustworthiness of the newspaper. When have newspapers been totally trustworthy? Either they are biased as a result of the information that they are given or by their perspective (eg: pro-right, pro-left)

On the other hand, in the Smith case, the court found that reliability did not necessitate a guarantee of complete certainty but rather that "the circumstances substantially negate the possibility that the maker of the statement was untruthful or mistaken." Under the circumstances, I feel that the writer would have no reason to fabricate a story about a fire and if so did, such falsity would undoubtedly would have been retracted in a following newspaper issue. The party wants to admit the clipping simply to prove the occurence of the fire, not that structural damage occured. I feel that the evidence should be admitted and that the probative weight will be determined by the trier of fact.

Since the event took place 56 years previous, the court cannot take judicial notice of a major local event such as a courthouse fire. Assuming the trier of law wants to avail the trier of fact with all reasonable theories of why the clocktower collapsed, sufficient evidence must be provided of this event's occurrence.

Using the principled approach, the necessity requirement is satisfied by the reasonable necessity to prove the fire occurred when there may be no available witnesses to the fire. The reliability requirement is satisfied where the newspaper concerned is/was considered a reliable document of record in Dallas.

Unless the article describes specific damage to the clock tower, its probative value would be very low. Furthermore this evidence would have to be corroborated by an expert witness. It may be difficult for a trier of fact to come to the conclusion that a fire 56 years earlier caused the tower to collapse. However, we are not told when the alleged lightning struck.

The newspaper report passes reliability and necessity thresholds (not necessarily ultimate reliability) because: * the reporter was a dispassionate and trained observer who has no interest or stake in the issue, so there would be little reason to doubt their sincerity or perception, much like the nurses in Venner.

* while the newspaper account may not contain enough detail about structural damage, it would be necessary to establish the event occurred as the first link in a chain of events -- subsequent repairs, maintenance, etc. What other records might stil be available from that time, other than fire fighting records, assuming there was a fire department at the time and that it kept records that survived.

And, let me say, in defence of my former colleagues, that very, very few journalists are ambulance chasers who manipulate the truth, the system and the vulnerable for their own gain -- just as we hope to say the same of most lawyers.

At this point we have just started to read about the exceptions to the hearsay rule. (P+S 67-76) [P&S refers to the text required for the course]. So I am aware that the SCC added exceptions in Khan, Smith, K.G.B., U.(F.). But those cases were about sexual abuse, and I propose that the court had an overarching desire to ensure a conviction of a child molester. It was much easier to add exceptions to the hearsay rule to nail some child-abusing scum. P+S say that Khan extended the principles to a "general application." But Khan was a civil case about sexual abuse, so I am doubtful.

I am unconvinced [but willing to be told otherwise] that the principles of "necessity" and "reliability" really transfer to a insurance claim in a civil case. The cases are hardly parallel. How do we really define necessary? In Smith, P+S say that necessity was defined as "needed to prove a fact in issue." So sure the newspaper article is "needed," because there may not be a witness to a 56 year old event, but I am not sure that this necessity overcomes the problem that the statement is hearsay. How could the other party cross-examine the newspaper article?

I think I am hardly in a position to accuse [ES] of being a long talker (any Seinfeld fans?). I don't want to cut off discussion but I think we have explored the clock tower very well. On the one hand, as [ES] says, the basic problem here is that this is hearsay, no matter how necessary. The reporter is not here to be examined. There may well be problems of perception and reliability. Going back so far it is hard to even speculate about conceivable reasons to be inaccurate. On the other hand, the insurance co. might argue no reason for a reporter to lie, a false report would have been corrected and would have damaged the professional reputation of the reporter, it is a contemporaneous account and there certainly is a need for the evidence. I thought there was a very good flavour in the discussion of the kinds of assumptions which might influence whether a court would find indicia of reliability, e.g. [SO] re the status of reporters. Perhaps reporters might not be seen as prefessionally responsible unlike the nurses in Ares v. Venner? Again this illustrates the important way in which assumptions about the world around us influence evidence arguments and holdings. The U.S. court deciding the clock tower issue admitted the newspaper report, interestingly referring to the fact that it was a newspaper in a small town (the cultural image of the small town editor in braces and eye-shade rather than the paparazzi?)

I am trying to decide what criteria a court would use to determine the accuaracy of a report of this nature.

Possible Criteria:

1 Historical status/reputation of the Newspaper

2 Reputation of the reporter

3 Availablility of cross-referenceable citations within the article (notably other reputable news services or references to reliable documentation supporting the allegations made in the article).

Any other suggestions?

I find it hard to believe the newspaper article is necessary in proving a fire took place. This is a presumably a public building with ample traffic. Would there be no witnesses who could testify that there was fire damage in existence before the lightning struck? Would there be no record of repairs (if any)? If there was structural damage (caused by fire) before the lightning had struck, it is likely the evidence of a newpaper article would be unnecessary to prove this point.

That is the whole point of the necessity component is it not? Basically, if there's another way to make your point that WILL be subject to oath and cross examination - bring it on.

Good point about necessity, [PE]. But the nurses were actually sitting in the courtroom in Ares v. Venner. Necessity seems fairly flexible. The necessity there was simply convenience. See also the quote from Lamer at P.& S, at 69. I agree that there is a preference for witnesses who can be cross-examined, but it might not be the case that a person's memory of a 1901 fire would be better than a contemporaneous account. So I see arguments on both sides re your point.

I know we've basically shut this down-- just wanted to add that the language of the Court in this case (286 F.2d 388 (5th Cir.1961)) actually prefigures the SCC's formulation of the test. The judge noted that it did not "characterize this newspaper... as an ancient document, nor as any other readily identifiable and happily tagged species of hearsay exception." It thereby jettisoned the categories approach, at least for this case. Instead, the Court felt that the statement was "admissible because it is NECESSARY and TRUSTWORTHY, relevant and material, and its admission is within the trial judge's exercise of discretion in holding the hearing within reasonable bounds [emphasis added]." Substitute "reliable" for "trustworthy", observe the possibility of judicial discretion, and there you have it-- the 5th Circuit beating the SCC to the principled approach by almost 30 years.

Or has being in the USA gone to my head?

I was wrong, there was more to say! [PE] reminded us not to forget about the necessity aspect, and [DS] went and looked at the case - neat! It was a case that foreshadowed the Canadian developments on the principled approach, but then they had Wigmore in the U.S.! Now I think we have really exhausted this discussion, so lets direct our minds to some of the cases on the principled approach.

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