Judge Christina Habas, a trial judge in Denver, Colorado, submitted the following piece. In addition to her work on the bench, Judge Habas teaches for NITA.
THE MISSING LINK
The longer I sit on this bench, watching trial after trial, the more I recognize that there is a critical connection between a lawyer’s ability to tell a cogent story in trial, and the ability of a jury or judge to be persuaded. In advocacy training, therefore, it seems that our primary purpose must be to persuade our students that this is true. More important, it should be our primary purpose to provide our students the “link” between the story of the case, and the evidence they present.
This connection occurs when a student realizes that every question asked, every exhibit used and every statement made must somehow be directed toward providing a factual basis for their story. So, how is this best accomplished?
Just as we must have a destination in mind before we get in our car and go, a lawyer must have a story destination firmly in mind before deciding what evidence to present. Otherwise, the trial becomes nothing but a meaningless, fact-intensive exercise in throwing stacks of facts at the fact finder, hoping they will make sense of them.
Beginning each exercise (direct, cross, exhibits and opening statement) with a clear statement from the student of what this information will be used to argue in closing is an excellent way of providing this missing link. The student should not be allowed to get away with vague platitudes (such as, “I want to prove that the defendant knew what he was doing was wrong”). Instead, the student must be prompted to actually perform a segment of their closing argument, which is based upon this particular evidence (such as, “this defendant knew what he did was wrong, because when he was confronted by the evidence, he ran from the scene and wasn’t arrested for several months. Does a person who has done nothing wrong run and hide? No.”)
It is only if we, as teachers, insist that students give us a clear goal of their examinations that we can effectively determine whether their examination is sufficient to law the foundation for that goal. We cannot gloss over this requirement, or this link in persuasion will remain forever lost to the student, and we would have failed.
Remember the “missing link”.
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