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Thursday, August 19, 2010

Aim to keep it simple: audiences like that approach.

Simple is best. As advocacy teachers, we drum that mantra into our students. The best advocacy presentations go directly to the heart of the issue and present a compelling, simple story that weaves together theme, theory, and the law.

As I've commented in past blog postings, high-profile cases like the Blagojevich trial present wonderful teaching opportunities. In this case, several weeks of trial, thousands of hours of preparation time, and millions of dollars in attorney time and fees ended with the jury convicting Blago of just one count, and deadlocked on the other twenty-three. The judge declared a mistrial (self-aggrandizing note--in an interview with a local paper, yours truly predicted a mistrial,and the proof is here).

The case was enormously complex. Whether it needed to be is a worthy subject for debate, as is the issue of whether it should be retried (my personal opinion is that the US Attorney should declare victory on the single charge, drop the others, and proceed to sentencing; I don't think the case will go much better for the government the second time around). The Wall Street Journal just published an editorial, available here, criticizing the U.S. Attorney, Patrick Fitzgerald, for grandstanding and overcharging the case.

But what advocacy teachers should focus on is the lessons to be learned from the government presentation of the case--from opening statements all the way to the jury verdict form. An article in the New York Times, here, suggests that the jury was overwhelmed by the complexity of the case. One juror's comment of the case tells the whole story of an overly complicated presentation: "It was like, here's a manual, go fly the space shuttle." With the jurors forced to create their own charts in an effort to make sense of the charges, one wonders what might have happened if the government had been bold enough to try a simpler case.

I am reminded of a story told by my good friend Hardy Menees, a partner in the St. Louis firm of Menees, Whitney, Burnet & Trog. Every year, Hardy gives a lecture to my trial advocacy students and tells the story of a seemingly complex intellectual property case he tried. He started off as local counsel for an out-of-state firm, but as the case drew closer to trial, the firm asked him to take over the trial. He did so, but on one condition: that he be allowed to try the case as "an old-fashioned stealing case." Casting aside years of depositions and discovery on complicated issues involving formulas and intellectual property, he found some incriminating telephone records that helped prove his theory of the case--that one party had stolen another's idea and profited from it. He took what seemed overwhelmingly complex and made it simple by finding the human story behind it all.

It's a great lesson for advocates. If there's a retrial in the Blagojevich case, the government might do well to borrow Hardy's approach. The simpler, the better.

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