The what, why and how of our advocacy teaching

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I am yet to meet a colleague who decided early that their career was to be an advocacy teacher and who then single-mindedly achieved their ambition. 

Rather my teaching colleagues have arrived by accident, by way of routes such as: ‘You’re teaching procedure, evidence and criminal, so why not add the advocacy as we’re got no one’, ‘Remember that time over drinks when you said you’d be willing to help out as an adjunct, well we need you tomorrow’,  ‘Look, you’re one of our better known alumni, you’ll have plenty of time after you retire from the court next week, so come aboard and share your wisdom’, and, ‘Liked what you did on your feet today, so how about coming to help me with this trial team and, if you like it, we’ll get you along to teacher training’.

Once snared so many of us stick around, often for years, sometimes for decades.  Why? Isn’t it a mix of pride in seeing future advocates mastering basic skills, a sense of willing obligation to hand on ‘professional’ standards, and the immediate ‘feel good’ rewards that we get when the students grin with new found communication power?

The accidental way in which we enter the field and the immediate and repeated ‘rewards’ may explain the dearth of discussion about our approach to teaching:  what we should teach, why, how, etc.?  We come into established courses, the reasons for their content and order lost in time.  We use a case file because we’re told it’s good. We attend and enjoy a NITA or similar ‘train the trainers’ session and feel that there is now light upon the dark spaces of teaching and learning.

All of that is worthwhile but in this age of ‘where’s the proof that your methods are effective and efficient?’ we’re not much beyond the snake oil peddlers.

‘Too hard, steady on, don't attack my bona fides as (one or more of) an experienced advocate, judge, legal academic’. OK, try to write a reasoned, evidence based paragraph about why you start your advocacy training the way that you do.  Done that?  By the way, ‘evidence based’ means what it says.  Your and my ad hoc memories and assumptions from practice do not constitute reliable evidence as the data set is far too small.  Perhaps you need to rewrite that paragraph? Now consider whether and how you actively shared what you have just written down with your current or last class.

Over the past twenty years I’ve gradually jettisoned pretty much everything that my well-intentioned early mentors told me about advocacy training.  Experience with many groups of students (large and small, novice and experienced, adversarial and inquisitorial domains), demonstrated over and over again that the ‘standard’ approaches too often didn’t work beyond the student experience. Sure they gave the students the ‘holiday cruise’ effect of feeling terrific in the immediate aftermath; however, the skills were just icing and the cake was hollow. That was all too obvious when watching them in ‘real’ courts in the months or years after their training. [I concede that an explanation is that I am a lousy teacher, and that any good teacher would not have such an experience; however, I’ve seen the ‘in court’ results of others’ teaching and so they too are lousy.]

The consequences of unsuccessful teaching (and such teaching may be enthusiastic and engaging, just as it may be deadly boring) are not the same for black letter law subjects and practitioner skills. There’s a fundamental difference between applying ‘substantive law’ and ‘practising good advocacy’.  In the former, assuming that at least problem identification is learnt, then the indifferent student, now practitioner, can find the answer by research. They can ask around, go on the web, visit the library and all will be well. But in the latter there is no substitute for the hard yards of real skill acquisition through the repeated combination of informed effort and talent. Good advocacy takes a lot of effort, a commitment of time that is expected of serious sports people, and therefore is quite unlike the, ‘I’ll cram today and tonight for tomorrow’s exam’.

The necessary effort reflects opportunity, efficient and effective skilled instruction, consistent motivation, and acquiring the ability to self reflect and so self improve.  For an image that captures the ideal see the Grecian discus- thrower at  http://en.wikipedia.org/wiki/Discobolus   We see, still mesmerising after a couple of thousand years, the achievements of both player and sculptor, reflecting total commitment by each to the performance.

If a student asks me, ‘What is the aim of direct examination?’ my fantasy answer is to achieve as an advocate with the witness what that sculptor achieved with that discus-thrower.

That’s the ideal but what about reality?  How much ‘deep learning’ (that is, learning that will be recalled and applied well after the end of the course) is achievable for the average student in a one semester course with 3 hours of class contact per week?  How much more is achievable with the highly motivated trial competition team members, bearing in mind though that the focus for such a team is not broad skills but the specific requirements of the competition case files?  The competition rules, for example, limit the players to the information contained within the script.  That limitation does not marry with real life practice so that the competition focused advocate is missing out on a significant part of ‘advocacy in the real world’ where going beyond the script to make use of the audiences’ life experiences is one of the hallmarks of real persuasive skill.

So what training method or methods will achieve that ‘deep learning’? Are any of our readers sitting on some unpublished research that will help to answer this question?  Are any of our readers proposing such research and looking for one or more other readers, who happen to be advocacy teachers, to share in the project?  Is there an unpublished survey of former advocacy students that asks about the extent to which, as frequent or infrequent advocates, they apply and reflect upon what we taught them? Did we miss something that they really needed and had to find out about through trial and error?

If we take any one of the advocacy skills, how should that skill be broken up so that the student understands what they are trying to master?  Yes, there are building blocks, but are they the right size, or overly broad, or overly narrow for the best teaching and learning? The fact that something makes a lot of sense to a person who already ‘understands’ does not mean that the learner likewise sees the explanation as clear.

Another unknown is the best order in which to teach these skills.  Some people say start with direct, others say to start with the closing, yet others prefer to start at the beginning, while others again like to start with case analysis.  I start with where my student audience is at.  That means I have different starting points for a high school mock trial team (who have not studied law) and a later year law student group (who are saturated with legal principles).  With the high school group I start with cross because the initial burst of excitement will get us over the ‘dry’ law stuff. With the law students I will probably start with case analysis because it takes their law out of the classroom and into the world. With a group of practitioners it’s necessary to gently inquire about what they now do for preparation and performance, listen to the answers, and fashion the teaching entry point to reflect the best connection to where they are at.

Readers who follow NITA will know that they are celebrating longevity this year. [See their hyper link in the right column of this blog.]Many of us owe much to our NITA experiences, both as students and teachers.  NITA has had to adapt to the times. Programs are now shorter than they used to be. As with university teaching there is, or will be, more ‘on line’ material and less face to face. 

As advocacy teachers in a fast changing world we need to be sure that what we teach, why we teach it, and how we teach it are ‘evidence based’.  Otherwise we may find that we’re surplus to requirements, that ‘our’ job will be done by the brassy but ignorant. Given what the community (which includes our students, clients, witnesses and jurors) sees on TV as ‘court room drama’ there is a terrible risk that no one will notice the difference.

Hugh Selby ©  June, 2011