In 2010 Atul Gawande, a Boston based surgeon, published his ‘The Checklist Manifesto: How to get things right” [Henry Holt and Co. LLC, ISBN 978-0-8050-9174-8]. The point of the book is that customised checklists help us all – no matter how experienced and clever – to do the job better.
There’s nothing new about checklists. For lawyers there is much transactional law that lends itself to ‘doing by numbers’, a reality that encourages the profitable use of paralegals.
For advocates too the notion of checklists is also well established. A trial note book is a super checklist, inside of which there are sub checklists and far too much distracting detail. Having sat grudgingly through a number of presentations on the necessity for a trial note book and the need to have it tabbed and colour coded etc. etc. , I did not expect to find a book on checklists interesting, let alone a successful change agent for how and what I teach.
Gawande’s insight is the bleeding obvious (with hindsight), namely that a checklist is only as good as its immediate relevance to the user. Take the weekly shopping list – whether it be the adhoc list of items scribbled on the white board fridge magnet, or that new cell phone app you’ve been playing with that lets you put items against various categories on that shiny, bright little screen. The former probably works better than the latter unless you can readily change those app categories. Why is this so? The app categories are generic and are not the best fit for your shopping preferences. There’s a best fit checklist in your head that reflects both your categories AND where you’ll find them in your supermarket.
For so long as you shop alone and you know what’s missing from your home shelves then your ‘inside the head’ checklist is very efficient. The problem arises when you share the shopping: your ‘assistant’ is not inside your head, doesn’t share your priorities for filling the missing spaces on the shelves, doesn’t tour the supermarket in the same idiosyncratic way that you do, and probably wants to move along some of those shelf items and stock a few items of which you do not approve.
There are ‘would be’ high flyer advocates who share with some aspirant surgeons the misconception that theirs’ is a solitary craft for genius, overlooking that without continuous teamwork nothing notable is achieved. Developing and sustaining that teamwork is a high order application of sharing the shopping journey. The method is to start with the generic (like the app shopping list) and then tailor that checklist to the needs of the team so that it’s there, being easily and helpfully applied, during the preparation and during the performance.
By the way it’s a misconception to believe that such a checklist cuts off the capacity to be creative. To the contrary, with everyone knowing what they are doing, and why, there is the opportunity to search for a better way. And, having found it, the checklist is updated.
As advocacy teachers we can use checklists both for trial preparation and performance sessions. By showing that it works it is more likely (I hope) that our students will then carry over the habit into their practice. My present plan is to create a checklist backbone, to which students (and other teachers) can add such ‘reinforcing’ and finishing detail as meets their changing needs.
Paying false homage to my blog colleague Charlie Rose’s commitment to a rule of three I introduce the substantive part of this article by calling upon the 3A’s ( the advocacy teacher’s response to the 3R’s). We have adversarial, audiences, and anticipation as the three touchstones of our craft. I’ve yet to find a way to properly use this insight but astute readers may find a way and share it in the Comments box.
Within our adversarial system we define a contest within the legal elements of each cause of action or charged offence that is before the court. But that’s not the only foundation concept to which the student must pay attention. There is also, and always, identification of audiences and the respective objective needs and subjective wants of each audience. That this is so is readily seen as this article is being written by the hype around the forthcoming trial of a recent head of the IMF who engaged a hotel staffer who entered his New York hotel suite. Whether what then happened was an outrageous abuse or a consensual fling is for a New York jury to decide. The legal teams for both prosecution and defence are doing their darndest to create atmospherics for the audiences that give their side some advantage in the public space that is the media.
That leaves ‘anticipation’. This is a concept with several implications in the advocacy concept. It is clearly difficult to grasp – the proof of that being the daily performances of too many advocates who clearly don’t have a clue about even one such implication. ‘Anticipation’ requires an advocate to recognise what their competent opponent would do and either prevent it, or minimise the amount of damage that their opponent can do. The problem is that the less than competent advocate lacks the capacity to discern what a competent advocate would do, no matter for which party they act.
‘Anticipation’ also refers to what the good advocate will set up in each of their audiences: a sense of a case that is well prepared, will be well delivered, and which will be persuasive. (There is a third aspect of anticipation to which we will turn later.)
The foundation of elements, atmosphere, and anticipation leads into a checklist of ‘required’ evidence. Both sides must engage in this task: one side to make sure they have it, the other side looking for the bit that is missing, or the bits that are there but are, for one reason or another, compromised. Hence the checklist requires the lawyers to look to the sources of evidence and then objectively evaluate the ‘weight’ that each bit bears. So, early in the piece, there are reasons for advocacy to be taught tethered to an evidence course. How better to understand the critical place of ‘credibility’ as a basic evidence concept than to see in the course of practising the art of cross-examination that a critical mass of mud on the face of the messenger is so very effective to cast doubt on the strength of his or her relevant and admissible message.
Given the sources and their perceived strengths and weaknesses the advocacy student must then consider the interwoven concepts of, ‘What is the most persuasive order in which to present this evidence?’ and, ‘How do I minimise on direct the target size of my witness who will be cross-examined when I finish?’ It’s at this point that the student is applying the guideline, ‘Start with your best, finish with your second best, and wrap the weak stuff in the middle’.
Following this skeletal approach the student should be able to run ‘trigger’ points from her or his checklist that bring to mind the topics of factual material that need to be drawn out from one or other witness in a predetermined, persuasive story.
With the law and fact content settled, a student advocate needs to pay attention to the presentation aspects of both their and their witness’ performances. For the novice this means that the checklist includes how their anxiety is going to be masked. It may include such detail as, ‘Are my feet and that of my witness facing towards the decision maker?’ ‘ Do I and my witness have a half glass of water handy?’ ‘Are we both able to bring our voice speed down to a good court room speed by syncing our toes with our voice speed, and having a note that has ‘SLOW’ written vertically on the page?’ and, ‘Am I now entering that 3D space with my witness to recreate for the audiences in this court room a past experience of the witness that is being retold by us today?’ That amount of detail is only necessary for the newbie. The more experienced, where such preparation is automatic, merely writes: ‘control anx’ to cover for that rare occasion when the automatic deserts them. That’s the beauty of the customised checklist: it’s there when it’s needed.
The checklist may also include a reminder about clothing and artefact such as tattoos and body piercings: doing whatever can be done to keep a prejudice in the audience turned off.
That done there is the checklist point about how and how early to introduce visuals that will entice the audience into a story that they can now ‘see’ as well as listen to. There’ll be a cross link to that evidence topic of ‘more prejudicial than probative’ to remind the advocate who loves gore that some in their audience max out with a ‘low level violence’ rating.
Slipped repeatedly into this sequence will be the message, “Reassess your position. Should you now reinforce, back up, shift focus, or move forward?” That’s the essence of having our students acquire the inner knowledge that all good advocacy is both reactive and pro-active to the immediate environment.
Making or not making objections to questions or assertions by the opponent is another application of the reactive/proactive approach. The common objections lend themselves to a checklist. Introducing that list – for the novice- are two questions: 1. Do I have a good faith basis for this objection? AND 2. Do the tactical benefits (now and for possible appeal) outweigh any tactical downside (such as antagonising a jury)? Once again the ‘objections’ checklist provides a good link with the parallel evidence learning.
By dint of explication and repetition above I hope that it is clear that this article does not endorse generalised checklists of the sort that might be otherwise called templates or precedents. Sadly, but fortuitously for adept advocates, there are plenty of situations where the witnesses have used such generics. Sometimes the advocate just knows that the witness will have followed, for good or ill (and usually with their assessment brain in the ‘off’ position) some inappropriate checklist. It is good to anticipate such a witness because worse than no checklist is the slavish following of the wrong one. The cross examination of such a witness must eschew belittling but leave the other audiences in no doubt as to the lack of witness credibility.
Our students need to know that a checklist is a map for macro items and a reminder of those things that are important to the student at and around the time that the checklist is prepared. Just as effective CV’s change with time so should a useful checklist.
A useful checklist uses topics (just like the agenda for witness examination). It is short (like an opening and a closing). It is easy to find. It will do either or both of: ‘Do this and confirm you have done it’, or, ‘Read this and do it’. It does not include explanation because that is a given before the checklist is prepared. Just as teacher and student find it useful in basic training, so later that student, now an advocate, can make it useful for advocate, witnesses and anyone else on the team.
I can see an advocate walking up the stairs to the court house. The mobile phone is open, they have closed out the non work apps and they are looking at their pre-court checklist. There are many things on their mind. Fortunately the last item is, ‘turn this thing OFF’.
Hugh Selby © June, 2011.
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