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Tuesday, January 25, 2011

Evidence based Advocacy Teaching

Advocacy instruction: most litigators are aware of it, some have fond memories of the moments when everything clicked, when their career decision was made. Others recall moments of humiliation and measure their strength of resolve by the observation, “Despite what that sadistic instructor said and did, I’m here and I’m good” – a Dickensian throw back.

So, for better or worse, the common talk about advocacy instruction and its results are the stuff of assertions fuelled by adhoc experience – the ‘feel good’, feel awful’ sentiment of past particular moments which may, or may not, be reflected in today’s real life performance as a litigator.

Thirty and more years of formalised advocacy training has, at least, dispelled the nonsense that advocacy skill is only an innate trait. Repeated advocacy brilliance reflects the combination of applying ‘lessons from experience’ and a gift – just as brilliance in any performance display reflects much effort sharpened by that gift denied to all of us who watch with envy.

However, there’s an important difference between the training that is offered across our sports and for advocates. For sport we all recognise as we take our children down to the local court, field, gym, park, pool, rink or slope that ‘beginner’ needs are not the same as those of advanced and elite performers. The early lessons are ‘generic’, a one size fits all approach (with heavy dollops of ‘natural selection’). But for the more advanced the training must be tailored to reflect quite specific needs and situations that the player/performer must deal with.

That progression from ‘all class training’ to ‘small group and individualised coaching’ is not commonly noted in our litigator profession. Sure there are examples of senior litigators sharing their experience with established but less experienced, but there has been no discussion about either methodology or content. It is as though we litigators accept the absurd proposition that a modicum of instruction is all that is needed, that thereafter it is sufficient to achieve greatness by going to court a lot, and that our failures are never the result of our lack of learning but always to be blamed on something or someone else. I can imagine ( and hope to enjoy one day ) a good litigator who has another life as a top flight sports commentator writing a sizzling expose of this blindfolded approach to searching for excellence.

Something else that is not commonly noted is that the approaches to ‘advocacy beginner’ training have been evolving this past quarter century. Some would see these changes as undesirable mutations or heresies, but others would see them as opportunities to test new approaches, and to respond effectively to the changing perspectives of students. One such change is to recognise that ‘interaction with’, rather than ‘espousing at’ today’s learners is effective - if for no other reason than that the ‘espousing’ merely repeats what is on Wikipedia which can be read while looking at a You Tube clip on some other ‘awesome’ topic. It is the ‘doing’ and the ‘instant, constructive, incremental feedback critique’ in an atmosphere of ‘excitement’ created by the instructor which can’t yet be done ‘online’.

‘Doing what, when, why and how’ remain, however, the perennial questions for all advocacy teachers. This is so, regardless of whether the call is to run a course for keen high school students, trial teams in law school, early career litigators, would be appellate lawyers, or those few experienced lawyers who can admit to the benefits of some objective critique and coaching.

Answering those questions seems often to depend wholly upon a teacher’s chance entry point to teaching. Once admitted there is one ‘true way’. There is, therefore, no reason to step outside and inquire, ‘What else, why and how, might do this job as well or better?’

Moreover, despite being litigation lawyers and ‘evidence focused’, our advocacy teaching practices are not evidence based. We assess students but we don’t assess our methods. We could and we should run controlled experiments to objectively ascertain whether and why one approach produces stronger advocacy skills than another.

Fortuitously there’s an example in this week’s postings about ‘teaching juror selection’. I glean that ‘juror selection’ is a tail order component to advocacy courses, something to be attempted after questioning, objecting, addresses and case analysis have been done to death. Coming from a jurisdiction where there is no ‘in court’ juror screening process, apart from the using of peremptory challenges guided by uninformed ‘gut’ feeling (alas, I kid you not), my response to the postings by Stewart, Habas, Jourdan and Rose, is to feel cheated that I can’t start an intensive advocacy course with juror selection. Why would I want to do that? Because the listening, crafting of questions, careful manipulation and control, use of character cards (aka Easter eggs) by the class jurors, and attention to pre-determined objectives, seems to me to be such an exciting and robust way to introduce ‘would be advocates’ to fundamentals that carry over directly into direct, cross, and address technique. As an exercise it also appears to support a faster group dynamic than the usual topic flow engenders.

This advocacy teaching blog allows any of us to experiment and report the results. Judge Habas began a series on juror selection that has ‘exploded’ (like celebratory fireworks) into an enlightening and fascinating exposure of points of view and ‘how to do it’. So let’s take those ideas, try them out in addition to, or in place of, what we’ve been doing to date, and then report back: worse than my tried and true because….; no change; slight improvement over my past results because……; big improvement because….

It’s great to be able to confidently say, “The evidence establishes”. Copernicus is not the only person who can disprove shibboleths. We can too

Hugh Selby (c) January 2011

1 comment:

  1. Bravo to Hugh for building on the voir dire thread and suggesting ways of testing these ideas! I have used Tina’s approach to voir dire with my students for a long time. (Heck, sometimes if I whine enough, she even does a guest lecture for me.) But I’m excited to try some of the other ideas that have been suggested here, particularly Charlie’s “Easter Eggs” and Jeanne’s “Demonstrate 5 Techniques.” Since I don’t teach voir dire until the end of the semester, I have time to figure out how to integrate these ideas into our learning experience. I’ll report back to the blog on how it goes.

    Thanks for the great ideas!

     Bob McGahey