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Monday, December 20, 2010

Using Movie Clips to Improve Direct Examination

I'd like to follow up on Hugh Selby's excellent post on bringing a 3-D element to direct examination.

The artificial conventions of direct examination can serve as a barrier to prevent advocates from bringing a story to life through a witness. Constrained by the form of questions, hamstrung by the perceived need to "get facts in" through a witness and frightened by the possibility of drawing objections from opposing counsel, many advocates fail to develop the narrative richness and color that their witnesses might be able to provide them. After all, the witnesses generally have a tremendous advantage over everyone else in the courtroom--they've been there and experienced the events about which they are testifying first-hand. Instead of telling stories through witnesses and bringing the fact-finder to the scene, we often use witnesses simply to recite boring lists of events and facts.

This phenomenon is, of course, not limited to trial advocacy. Many years ago, I became friends with Leonard Bishop, a novelist and teacher who lived in Manhattan, Kansas. Leonard used to put on a creative writing workshop at local elementary schools. He always got a laugh from the students with this line: "All your characters are naked! You haven't put any clothing on them!" Then he'd have them rewrite their stories, adding description and color to the plot line.

It's difficult to get student advocates to bring elements of color and description into their direct examinations. I believe this is because case files are two-dimensional. Student witnesses are limited to what is on the printed page, and because they haven't actually seen or experienced what their "character" has, they have a difficult time bringing their witnesses to life.

To help solve this problem, I use movie clips. I try to make the exercise as realistic as possible by ensuring that only the witness is able to view the clip. The advocate has to interview the witness in order to obtain the necessary information for the examination. Often, I'll set the exercise up so that the advocate has to interview multiple witnesses, decide on the most effective witness order, and then present the story through the witnesses to a jury. At the end of the presentations, everyone--counsel, witnesses and jurors--watch the clip together, and we talk about whether the advocate succeeded in bringing the jury to the scene and making everything come alive.

I often select a clip from the TV mini-series Lonesome Dove, primarily because it is set in the 19th-Century Old West. The time, place and setting require the advocate to pay attention to detail. I provide a brief fact sheet for each witness (giving them the year, the name of the town, their name, and some biographical information they would be expected to know). I have also used scenes from other movies for this exercise. It isn't the movie itself that's important; it's the opportunity for a student witness to come as close as possible to experiencing an event in the way an actual witness would.

As a variation on this exercise, I sometimes assign several advocates to interview separate witnesses. They must share this information with a "senior partner," who then decides how to present the information and must also give an opening statement based on the information collected from the advocates. We did this as a demonstration at the NITA Public Service Attorney course a couple of years ago. Student advocates conducted the interviews, and the inimitable Bill Ossmann served as the senior partner and gave the opening statement.

Here are a few rules for the exercise:

1. Don't worry about the cause of action. The purpose is to tell a story, not fill in elements of a crime or tort.

2. Only the witnesses watch the film clip, and they only get to see it once before their interview with counsel.

3. Each witness gets a fact sheet in advance.

4. Counsel are instructed to pay attention to detail and setting in their witness interviews.

5. After the presentation of the story, everyone watches the clip together.

6. We discuss what went well and what could have been improved.

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