They say that, “hope springs eternal”, that “ what goes around comes around”, that “ there is nothing new under the sun”. How true those remarks ring when someone, anyone, starts talking about advocacy within the wider law curriculum.
That campaign was lost when the profession handed over the teaching of law to academics, those being a class of people for whom ‘advocacy’ is a mere skill, something less than an intellectual challenge.
Sure there are teachers who bring ‘advocacy perspectives’ into teaching evidence, procedure, criminal law. And sure there are students who find that exciting, but it’s not mainstream. There is not, and will not be, any majoritarian push by law academics to build their substantive law courses around the structure of a litigation case file. Why not? Because, in case you hadn’t noticed, most academics are not fighting with the spoken word in public places. Their battles take place in journals and competing text-books. Incremental success is seen in the changing perspectives to be read in successive volumes and editions. By contrast litigators revel in public, speaking combat.
Hence to propose to one’s academic colleagues that there be more advocacy across the curriculum is a form of career stunting. Your career may not wither, but it will not flourish and the fruit will be sparse.
There is, however, another way, an approach more likely to bring success and one that uses all those skills that we bring to advocacy training.
Every good advocate understands that ‘manipulation’ is art not trash. Let us not fail because of mere antipathy to a word. Replace ‘advocacy’ with ‘persuasive communication’ and every ambitious academic is interested. From among all those articles submitted to the top category journals they want theirs to be chosen. You can help.
That quest is more likely to succeed if they apply the generic basics of our craft: what are the needs and wants of their target ‘commissioning editor’ audience? Are the aims of their article clear and of interest to that audience? Have they adroitly prioritised and melded the issues of law and fact that are the foundation substance of their article? Have they anticipated what the opposition will assert? And, that done, have they refuted or minimised its strength? Are their citations from appropriate sources and used in the right places? Do they draw conclusions that flow from the facts and the law, are compelling, succinct and memorable?
Those academics who are drawn to ‘empirical research’ must venture into the dangerous realm of talking to people, getting those targets to give up facts and opinions. There’s a skill to doing that – whether it is designing a questionnaire, planning an interview, or obtaining ethics approval. The basics of that skill are the generic aspects of the questioning skills that we teach: knowing the topics, settling the interviewee, asking the right mix of open, closed and ‘in-between’ questions, use of repetition, facility with listening, topic transfers, encouraging the story, and so on. Don’t call it direct, cross, or redirect. Call it, ‘collecting comprehensive, relevant, reliable data’. Now re-read Judge Habas’ two articles on jury selection and see the links between what she is explaining and any half way credible empirical research project.
So, how to get academics to relish this approach? In this age of ‘every member of faculty must have this and that role’ all advocacy teachers must volunteer to wear the hat of ‘Publishing Facilitator’. Each semester there must be one or two ‘brown bag’ lunches at which the ‘Publishing Facilitator’ chats knowledgeably about the checklist that every academic must tick off as they plan their research, as they draft their article, and before they submit the final version for publication. The ‘Publishing Facilitator’ must collect intelligence about the ‘needs and wants’ of the favoured journals and share it with colleagues on a ‘need to know’ basis and also on a ‘how can I advance my own career by careful favouritism?’
Another aspect of being an advocate, one quite unnoticed by academics, is prowess in juggling. Ideas, facts, cases, propositions – they must all be known, but they move in space and time, sometimes to the foreground, sometimes in the rear, until the magic of closing brings the cement. It’s that juggling which allows the advocacy teacher and publishing facilitator to seize the chance and volunteer to co-ordinate the teaching of ‘research skills’. Get somebody else to teach the nitty gritty of how to research. That done, run a class or two on how to prepare, draft and write essays and exam answers. Surprise – the very same skills used as publishing facilitator come out again, albeit with some different names.
And now look at what has been achieved? You, oh blighted advocacy instructor, have become indispensable. Your skills in teaching ‘persuasive communication’ have permeated your school, reaching across teachers and students. They have been infected with ‘advocacy’ without knowing it. Wonderful what can be done with a little manipulation, or ‘marketing’ for those who prefer to be a touch coy.
[This essay records the advice of Odysseus and the soldier Siron given to the writer in a recent dream.]
Hugh Selby © January 2011.
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