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Sunday, August 22, 2010

Things 'Good' Lawyers do Badly

Hon. Robert L. McGahey, Jr. [Bob is a trial judge, NITA instructor, and adjunct law school professor from Denver, Colorado].

I sit there on the bench, mentally reading myself for the blow. And sure as the sunrise, it comes: another “experienced” trial lawyer does something so painfully WRONG that the whole trial may be lost. Why does this happen? And how can we, who teach advocacy, help to stop it?

Some background: I’ve been a trial judge for more than ten years now, and have presided over civil, criminal and domestic courtrooms. Before that, I spent twenty-five years as a practicing trial lawyer, and tried over one hundred jury trials during that time. For about twenty-five years, I’ve been teaching at NITA programs on a regular basis. Finally, for about twenty years, on and off, I’ve been an adjunct professor at The Sturm College of Law, University of Denver, teaching both Basic and Advanced Trial Practice. Like Sergio Leone, I’ve seen the Good, the Bad and the Ugly. For this post, I want to concentrate on the Bad.

Let’s start at the very beginning: jury selection. The inability of even first-class lawyers to conduct a meaningful and useful voir dire is shocking. In a day and age when trial judges (including me) put time limits on voir dire, shouldn’t lawyers make the best use possible of those precious minutes? Instead, trial after trial, I see long, drawn out analogies or hypotheticals that leave the venire confused and glassy-eyed. Or a list of leading questions that simply ask the potential jurors to say “yes” or “no” without conveying any information about the jurors feelings or thoughts. Or the arrogant lawyer asking a trick question and then berating the juror who falls for the trick and gives a “civilian” wrong answer to a technical legal point. This is hardly an exhaustive list.

Or how about lawyers who don’t understand the value of starting off with a believable, interesting story as opposed to a dry recitation of facts. Thus, the opening statement where the droning of “the evidence will show,” goes on until the lawyer mercifully runs out of items on a checklist, even though the jury is now infected with a terminal case of “MEGO” (“my eyes glaze over.”) And at the other end of the trial, the attorney who thinks that arm-waving, voice-raising and snarky digs at the other side are a good substitute for a reasoned, logical, persuasive argument delivered with passion, not emotion.

Or how about failing to use exhibits to make complicated matters understandable? Or preparing experts so that they teach, but don’t lecture? Or understanding enough elementary stagecraft to avoid making important points when the jury is looking at your keester? Or, or.or…………

Obviously, one answer is better skills training in law school. (After all, this is an advocacy teaching blog!) Whether we’re full time faculty or part-timers, we owe it to our students to teach them the best techniques we can in the most effective way we can. That means we should constantly re-examine how we are teaching advocacy skills. We find great teachers or practitioners or judges to help us present concepts or ideas we may not be as good at presenting; I have my colleague, Judge Christina Habas, come in and teach my Advanced class about voir dire, because her thoughts on that are more intelligent and forward-thinking on that topic than anyone I know. We can talk to judges and find out what they think are the weak points of advocacy in their courtrooms. We can ask our friends in the teaching business how they do it; I’ve learned new ways to do stuff just by talking to Jeanne Jourdan and Charlie Rose and Chris Behan. We can look to “non-legal” sources for ideas and examples: Uta Hagen’s books on acting for how to develop empathy with an audience; Adam Gopnik’s Angels and Ages for how Lincoln and Darwin used language for “popular persuasion;” Gregory Peck as Atticus Finch delivering that most powerful “ask”: “In the name of God, do your duty. In the name of God, believe Tom Robinson.”

What we cannot do is make the mistake that so many lawyers make: believing that we are being informative, helpful and astute, when we are really being boring, confusing or wrong.

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