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Thursday, February 24, 2011

Advocates (students and practitioners) Need Training More Than Ever

The following piece is by John Baker, President of the National Institute of Trial Advocacy

I have been reading the Advocacy Teaching Blog since last year, but have never commented. Chris asked if I could talk a bit about NITA's view on the January/February blog topic of "Advocacy Across the Curriculum."


Three key forces converged within the legal system over the last three years, some say over the last 30 years. The convergence resulted in a "perfect storm" for the American legal system and the American legal profession.

These three forces converging include; 1) economic stress on law firms and lawyers, which decreases or eliminates skills training and professional development; 2) federal, state, and local government budget cuts, which decreases or eliminates skills training and professional development for public service lawyers; and 3) renewed calls from the courts concerning the lack of skills training for the lawyers appearing in courtrooms and arbitration conference rooms.

Symptoms of this perfect storm include a precipitous fall-off in the level of professionalism of communication skills, and of ethical conduct by trial lawyers appearing in state and federal courts throughout the United States. It also includes a lack of trial skills in those who have not taken advocacy courses in law school. Translated - lawyers need training more than ever! They need a good base of training before they graduate from your law schools. And, they need continuing training ("booster shots") once they get into practice, especially if they don't have the opportunity to keep their advocacy skills sharp.

History Revisited?

Have we seen these storm clouds in the past? This decrease in "lawyering skills" looks suspiciously similar to what Chief Justice Warren Burger saw in the late 1960s, when he challenged the legal profession to improve the level of skill of trial lawyers appearing in state and federal courtrooms. In response to Justice Burger's challenge bar associations and other lawyer organizations embarked on the creation of advocacy skills training programs for practicing lawyers.

One such training organization is the National Institute for Trial Advocacy (NITA,) which I am happy to say I am privileged to be currently leading. In July of 1972 NITA staged its first learning by doing National Session in Boulder, Colorado. Over the last 40 years this NITA "learning by doing" method has been adopted by trial lawyers associations, by bar associations, by law firms, and happily by law schools.

The Need For Training Has Grown Exponentially

Despite forty years of all of these organizations training lawyers in advocacy skills, the need grows. Despite the expansion of expanding curriculums to include deposition advocacy, motions argument, and skills for other settings outside of the courtroom, the need still grows. Despite high profile studies and reports by prestigious academic and legal institutions (the "McCrate Report" from the American Bar Association Section on Legal Education & Admission to the Bar and the Carnegie Foundation report, "Educating Lawyers: Preparation for the Profession of Law") the need still grows.

Aggravation of the Problem:

Growth of this need has been aggravated by economic changes over the years and the ever expanding population of lawyers. Law schools continue to graduate lawyers in large numbers. Fewer dollars are available to train the lawyers in the private and public sectors. Government training money has dried up progressively over the last 40 years. The media headlines last fall and in 2011 paint a picture of even less government funding for federal, state, and local public service lawyers. The Legal Service Corporation budget may be cut another 11%, following the 2008 devastating cuts. (See http://www.prnewswire.com/news-releases/proposed-75-million-budget-cut-would-devastate-legal-aid-to-poor-115668409.html )

Law firms, large and small, have carried a large part of the load of training the law graduates in advocacy and communication skills for years. (See NITA White paper, available here). The 2009 economic downturn has reduced the resources and money available to law firm professional development programs to continue to provide enough training. Though clients are demanding better trained lawyers, firms can no longer find adequate funding to send their young lawyers to NITA or other skills training programs or to provide training in their own in-house programs.

Some Solutions

Programs for Practicing Lawyers. Creative solutions are needed. For the practicing lawyers, who need the training, NITA, trial lawyers associations, bar associations, and law firms will need to provide the skills training programs as economically as possible. The scope of training will need to encompass more than courtroom skills. Though courtroom communication skills are transferable to skills used in pretrial settings, post-trial settings, and depositions, advocacy training organizations need to acknowledge that fewer trials may require trainings to focus on the other advocacy settings for their training sessions.

Easily accessible and convenient training sessions are needed. Whether this means smaller outreach programs in geographically diverse locations or providing some of the programming online or electronically, all of us advocacy teachers must be prepared to think outside of the box. Public service lawyers will need scholarships or assistance, no matter the delivery system of the programs.

Law School Advocacy Training. The law schools may be the key to providing basic training to students before they graduate. Advocacy training needs to be expanded both in content (adding communication skills for transactional lawyer) and in volume (more sections of skills training.) At NITA we are seeing evidence that some law schools recognize the needs of lawyers as outlined in the Carnegie (available here) and MacCrate guidelines (available here). Participants in this blog share efforts they are making to expand the advocacy training efforts at their schools. Some are expanding their advocacy skills training curricula. For example, next month as a pilot project the University of Pennsylvania Law School has partnered with NITA to have NITA faculty present a week-long intensive "deposition through trial" skills training program for students during spring break. This intensive course takes the best of the training techniques NITA has developed in our public and custom programs and applies them in the law school setting. Other schools, including the University of Denver Sturm College of Law, are seeking ways to bring real life learning to substantive classes.

Plenty of Work Ahead for All Teachers

Just as Justice Burger saw in the 1970's there is plenty of need. Plenty of work to do! Despite limited resources lawyers still need training. The training may come in different packages. The training may be delivered differently. The training may focus on additional skills to the traditional trial skills training. No matter how the training changes, it is clear from the last 40 years, to keep up with this continuing urgent need for advocacy training the legal profession, legal organizations, and the law schools need to work together. Instead of viewing each other as competitors, we all need to work as partners to fulfill this enormous and growing need.


John T. Baker

E-mail: jbaker@nita.org


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