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Friday, December 31, 2010

Charlie's Tingle: the Quest for Advanced Skills and Advanced Teaching

Charlie’s tingle (and the need for it) raises a few general issues about advocacy teaching that deserve our attention. To begin the discussion, or rather to continue what Charlie unlocked, here are some basic concepts.

Advocacy is a performance skill that can be acquired to very variable levels of competency as a result of training, experience, ability to self-critique, and ‘born with aptitude’. As such a skill it is most readily acquired when the student has enthusiasm and the trainer combines experience with a sound teaching method.

Advocacy skill’s (and parallel skills such as interviewing, negotiation, writing) requirement for trainers with real experience sets it apart from the ‘black letter’ and even the ‘procedural’ subjects of a law school because those subjects can be taught by bright people with no ‘real practising law’ background.

Sadly there is little profession and community recognition that advocacy is a skill that can always improve, that always rewards reflective practice. It is as though the bar for competency is set at the ‘it’s ok’ level. Famous advocates are likely to be seen as just ‘born with the gift’, rather than as people who took that gift and worked hard and long to nurture and develop it. Contrast this state of affairs with the attention that is given to the ‘maturing and development’ of other performers and creators (such as singers, dancers, artists, poets, playwrights, novelists , celebrity cooks, etc.)

In this environment advocacy teachers fall into two groups: the full time teachers (such as the three co-ordinators of this blog, and Mark Caldwell of NITA who writes for this blog) and those who add occasional teaching to their already busy professional lives as judges, prosecutors, private attorneys. What both these groups share is an enthusiasm, indeed a passion, for passing on their skills to those who want to learn. These ‘would be’ advocates include law students with a dream of advocacy success, lawyers who now know from practice experience that they need to acquire basic advocacy skills, and students and lawyers who are required (be that by course requirements or employers) to gain some insight into basic advocacy. Of these three groups the first two are naturally motivated and the last, once fear is overcome, are usually surprised at the fun to be had.

Teaching and learning fundamentals require repetition, lots of it. The repetition is of the explaining, the doing, and the critique. That activity (which could become boring, even soul destroying) is made exciting because of the dynamic that reflects teacher passion and student motivation. There are similarities with first steps in reading and numeracy: there are no short cuts, practice makes perfect, some learn quicker than others.

As a method for teaching and learning the NITA approach works well because it combines an incremental, repetitive learning process with the opportunity for teachers to demonstrate their skills, be that by demonstration or the set piece exposition. That is, it is fuelled by the enthusiasm of everyone who is involved. It immediately rewards everyone and that sustains the enthusiasm. An added attraction of the NITA method is that it is easy to teach to ‘would be’ teachers. For further analysis of the attributes of teachers see the articles on this blog by Mark Caldwell.

The end of advocacy courses (be they NITA intensives, or semester units) are often marked by a high level of genuine warmth. Course evaluations are likely to be strongly positive. But what becomes of that skill level six months, one year and more later? A skill not used is a skill that withers. A skill that is countermanded by supervisors or judges is locked away and forgotten. If there is any data on the resilience of the basic skills that we teach, and/or on the extent of self-critique by practising advocates, then we need to know about it on this blog.

I confess to a strong sense of failure over the long term. Just once I was confronted in court by a young advocate who had been very promising when I last saw him in class two or three years before. His mistakes were so basic and so numerous that my colleague had to remind me that my first priority was to win the case and that I could ‘retrain’ my opponent only after we had defeated him and his client. Of course, such ad hoc, anecdotal instances do not make an argument. Somewhat stronger, and so more worrying, are the couple of hundred court reports that I receive each year from my students. Consistently, semester after semester, these students report that competent advocacy (as measured by OK technique on direct, cross, objections and address) is never more than 20% of all advocates observed. I am reflecting an across Australia perspective, a nation where well-structured basic advocacy training following the NITA model has been readily available for over 20 years.

The general acceptance of “it’s OK if it seems OK” on the part of the profession and the wider community is cause and effect of the malaise. If more professionals saw the benefit in further skill training then the level would rise, if only because they would win more cases at the expense of those who stayed in the rut until competition forced them too into skill improvement. Meanwhile advocates are adept at passing the buck for their errors. The community is quick to look for surgeon/physician error but very slow to blame bad advocacy for litigation results. To claim, ‘the patient would have died anyway’ is not as acceptable as ,’the client was probably guilty/ the police didn't do their job/ the witness stuffed up’.

Charlie’s tingle – its what, its when, and with whom – illustrates a rather basic, but not much uttered, aspect of advocacy teaching, namely that improving skill beyond the basic requires a ‘coaching and mentoring’ approach. This is not the classic NITA method. It is ‘post-NITA’. Its essential elements are that the student’s respect for the coach is derived from the student’s objective knowledge of their limitations and the capacity of the student working with the coach to go further. Read Charlie’s post again and the unwritten words are ‘mutual respect for professionalism’.

As advocacy teachers, wherever we are, we need to identify and share some new skills to enthuse practising advocates and the exceptional students to engage with further training. This is a matter of both ‘how we engage with the student’ and ‘what skills are to be developed’. An example of both may be seen in Jeanne Jourdan’s comment to my post on direct examination. Perhaps we need to look carefully at the approaches followed by the great coaches – be they in the arts or sport (all those being performance skills).

We all need Charlie’s tingle – it’s that warm and fuzzy, that body chemical, which sustains enthusiasm to teach. But as our profession and the law schools underrate advocacy skills it is our responsibility to develop new courses that are truly advanced – not only in skill content but also in teaching method. We’ve got our work cut out and I can feel a tingle coming on.

Hugh Selby ©
January, 2011.

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