The best advocacy, be it questions or submission, is elegant in the simple beauty and efficiency of expression. The ideas are so clear that they capture the audience and hold them as the logic plus the stagecraft of the advocate glue one point to another and another.
If we think about our advocacy, if we think about improving it, and improving the skills of those whom we teach or mentor, then the ‘best advocacy’ is our aim.
However, beyond the prescriptive models that have served these last forty years to train the novice, what do we have that is generally agreed to be applicable for working with those, who being no longer novice, can aim for greatness?
An experienced advocate listening and watching another experienced advocate can have the same rewards and punishments that a skilled musician has when listening to other musicians, or a skilled dancer watching dancers, or a good golfer watching one of the best. There is sufficient critical capacity to be alert to mistakes, to be in awe of aspects of a performance, but likely as not, insufficient capacity to answer, “How did he or she do that? How could I achieve the same result?”
Just to make the problem a bit more complex the performer too is unlikely to be able to explain how or why they performed so well. They just did. We use such words as ‘inspired’, ‘out of the blue’, ‘magical’ to label that something extra.
Fortunately there is newly found light to help us better understand those perfect intuitive decisions. A chance chat with a Business School teacher took me to psychological texts on neuroscience developments, making choices and problem solving. Out with those old, and wrong ideas, about the separation of the emotional and the rational. In with the new knowledge of how different parts of our brain receive, store, and deal with information. Our emotions and rational decision making are not non-communicating systems. They are closely interrelated.
I was reading with an eye to any insights the research offered for teaching advocacy and being an advocate. The pickings made it worthwhile. I use them liberally in the rest of this essay. For those readers who would like to follow the road back to the source I strongly recommend the easy to read and digest Jonah Lehrer’s ‘The Decisive Moment. How the Brain Makes Up Its Mind’, 2009, Canongate, ISBN 978 84767 313 8.
Learning from mistakes
It’s clear enough that we prefer pleasure to pain (and those who ‘prefer pain’ should stay with this article a little longer). Dopamine is a chemical found in the brain and because of it we ‘learn’ to anticipate that ‘this’ brings ‘that’. We learn so well that the expectation excites our pleasure senses even before the reward arrives.
If the reward does not arrive then we have made a mistake. It follows that we must learn from our mistakes all the time. To learn, to create reliable expectations, we must recognise the mistake, understand it, resolve it and then practise the solution. Our expectations are then ‘rewarded’ appropriately.
As advocates the fact that we’ve made a mistake is often all too obvious. The witness does not reply as expected, the decision maker is all too clearly unimpressed with our submission. The gift the teacher or mentor can bring is to point the way to understanding and a solution. But it’s the practice that is then the key. No practice or too little practice entails insufficient learning. The same mistake will then recur.
The excitement of getting it right once does not equal a usable skill. Getting it right once shows a capacity. Getting it right a number of times demonstrates a learned skill. I make this point because one of the consequences of ever shorter intensive programs is that there is insufficient time for practise of each and every practical skill that is introduced during the program. There is also insufficient time to make the many mistakes that are a prerequisite to mastering the skill so that it’s ‘on call’ when needed.
For advocacy teachers a teaching problem is how to maintain student motivation during the essential practice exercises. Lacking any ‘born with’ ability for mathematics or language acquisition I always found the essential ‘practice exercises’ in those disciplines to be tedious. Lacking any motivation, other than fear of failure, my mind never reached ‘beyond’ the exercise to creative links. Most advocacy students are motivated so the problem is not so acute; however, it is still there. As teachers we need to find materials, and follow methods that enliven and sustain that motivation throughout the practice.
In a perfect world (perhaps only a decade away) we will have the advocate’s equivalent of the pilot training flight simulator: our students will be engaged in a virtual trial in which the variable answers from witnesses and questions from the judge will allow instant feedback followed by further practice to get it right. In our real and present world, however, we must search for the more mundane but OK materials and methods.
Another problem that arises from short intensives is overload. Apparently our brains can only handle a limited amount of information at any one time. Supply too much and the ability to sort the wood from the trees is lost. When the prefrontal cortex is overwhelmed the person can no longer make sense of the situation. ‘Correlation’ is confused with ‘causation’, and people make theories out of coincidences. In short, beware!
A challenge for we advocacy teachers is to examine whether our teaching sufficiently breaks a skill into its constituent parts, whether we create adequate ‘mistake’ opportunities, and whether we provide enough practice for the basic skill to be properly embedded. Moreover, do we give the student the capacity to self reflect so that understanding and resolving are possible – either by seeking advice from a properly experienced person, or working it out solo?
The challenge for good advocates is effective management of extensive knowledge and experience. Often enough that stored knowledge and experience will bring them to the right ‘intuitive’ decision, but how should an advocate build a thinking approach that allows for further refinements as the skill and knowledge increases? [This ‘challenge’ is adapted from: K. Anders Ericsson, ‘The acquisition of Expert Performance as Problem Solving’, at page 75, in J.E. Davison & R.J. Sternberg, The Psychology of Problem Solving, 2003, Cambridge University Press.]
Whether novice or experienced, whether teacher or student, we can improve our decisions (eg. on case analysis, structure of chief and cross, reaching the audience in submission) through simple thinking techniques such as adopting an outside view, considering the opposite, or challenging ourselves to discover the root cause of a problem. I observe that credible science, and proper case analysis would always apply those approaches. Put another way, an advocate and an advocacy teacher must think about ‘how’ one thinks. [This solution is partially adapted from: B.R.Newell, D.A. Lagnado, & D.R. Shanks, ‘Straight Choices’ at page 214, 2007, Psychology Press.]
The ‘pay off’ for accumulated skill (aka wisdom) is that the twinges, the gut response, the intuition are not superficial. On the contrary, they reflect the distillation of all that has gone before, not consciously perceived, but being put to work at the right time. It is because so much of that process is ‘deep’ that it is impossible to precisely explain ‘why’ or ‘how’ it came to be applied.
Somewhat surprisingly it is possible to ‘overthink’, that is to be consciously asking questions to self so often as to cut oneself off from one’s own wisdom. The result is to throw out ‘the known’ and reach a poor decision.
By the way, those advocacy teachers who still think that seven minutes of student performance followed by five minutes of teacher critique is acceptable and useful to the student need to read and reread all the above until the penny drops.
Reaching the Audiences
We all want to make the right decision, and that’s the case whether we are jurors or judges. How we ‘frame’ the problem, how we reason our way to the solution is influenced by our background , but we still like to think that we get it right.
Promise something good and people respond well just on that expectation. The placebo effect (that is, feeling better because you’ve been told it will help) works apparently because that part of the brain which senses pain decreases its assessment of the pain in response to the expectation of pain relief.
Given the mind numbing effect of much court room evidence (surely ‘painful’ is not a misnomer) the promise by an advocate to bring interesting evidence may well cause the audience to pay more attention. Also naturally contributing to audience interest is their inherent wish to sympathise with the plight of others. Such altruism ‘feels good’. At its core ‘moral decision making’ is about sympathy: for example, we abhor violence because we know it hurts. The notion that an effective case motif is one that taps into these audience attributes of interest and sympathy seems reasonable.
An intriguing example is this visualising insight: when you want the audience to ‘see’ a person in a crowd then always use the mode, “ X a whole number OUT OF Y a whole number”. Using a percentage equivalent does not engender the same audience reaction. Apparently the problem with statistics is they don’t activate our moral emotions.
Of especial interest to both advocates and judges is that the moral decision – the feeling (aka the emotion) - comes first. The rational argument with all its ex post reasons follows the moral insight (however badly or well based that might be). Those in power, such as judges, business leaders, politicians, can become socially isolated. In that environment they don’t respond to other people’s situations as the sense of sympathy is displaced by other feelings. Their ‘rational argument’ flows from a different starting point and hence may be heartless, impersonal, indifferent to the plight of others. That is not to say that their decisions are necessarily wrong, only that the manner of communication is bad. One useful tip to redress this tendency, given by a famous judge to his brethren was, ‘Always write for the loser’.
Despite the ‘primacy’ of feeling it is possible to use the ‘thinking brain space’ (the prefrontal cortex) to overcome an emotional push; however, this requires very deliberate, very disciplined thinking. An example of such discipline is seen in the thinking that is required to overcome our desire to avoid anything that smacks of loss, called – aptly enough – loss aversion. So strong is our aversion to loss that we behave irrationally, becoming blind to the advantages of otherwise attractive options. A well known example is that faced with a falling market otherwise savvy investors sell their good performing stock rather than offloading the stocks that are performing badly.
I’m wondering whether this phenomenon is seen in the courts when an advocate sticks with a losing argument rather than refocusing on the more attractive argument or arguments that may bring success. The best advocates, of course, are able to read the signs, listen to the messages from the bench and change course. Not only do they just know, but when that is not enough they can think beyond the norm.
Hugh Selby © March, 2011
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