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Tuesday, September 13, 2011

Teaching Advocates to Listen

I'm always intrigued by the transformation that occurs when advocacy students conduct their first witness examinations. Until the moment they ask the witness to "state your name for the record," they are confident, competent conversationalists, capable of listening to others and asking natural follow-up questions. But in the courtroom, their life-long training as human beings abandons them. They adopt a stilted, awkward interrogational style in which getting through a prescribed list of questions takes priority over all else.

I recently discovered—by accident—an exercise that seems to have some promise in helping advocates develop the ability to listen to witness responses, ask natural follow-up questions, and use logical transitions from subject to another. I've tried it once, with some success, and I hope to develop and refine it further throughout the semester as I work with my trial team students.

Last year, I wrote about an advocacy exercise I developed a few years ago called "Deconstructing Studs," available here, in which I give the students a chapter from a Studs Terkel book and have them create a direct examination from it. I've experienced good success with this exercise as students strive to develop examinations that flow as smoothly and effortlessly as one of Terkel's oral history chapters.

A week ago, I assigned my trial team a Deconstructing Studs exercise. I modified the assignment a bit by insisting that their notes could consist of nothing more than an outline of headlines and bullet points for the subjects they intended to cover. I also changed things up by having about half of the students use their outlines to conduct a direct examination, and the other half using their outlines to conduct an examination by leading questions. The students did not find out which type of examination they would be doing until it was their turn. I played the witness roles and followed my usual practice of answering the questions the advocates actually asked, even if I was sure they meant something different.

I noticed that the students were having difficulty listening to answers and responding to them in a natural fashion. I believe their difficulty arose because they weren't operating from a script, and many of them were looking at their next bullet point and trying to formulate a question rather than listening to answers. This applied whether the examination used leading or non-leading questions.

Through the process of trial and error, I finally managed to get them to listen and respond better. I had three of them stand up at the same time to conduct the investigation. The rules were that each person could ask only one question. Each question had to logically follow from the previous question and answer. If a subject was exhausted, the questioner had to use a headline to move to the next topic. I had tried this sort of thing in "getting to know you" drills, but never for a prepared examination.

For some reason, the three-headed examination actually worked. My examiners were not tied to their notes, because they had no idea what the person immediately preceding them would ask, or for that matter, what I would answer. This ended up being the best examination of our practice session.

I intend to experiment with this some more during the fall trial team practice season, and if I discover anything noteworthy or revolutionary, I'll write about it.




1 comment:

  1. hugh.selby@anu.edu.auSeptember 13, 2011 at 3:16 PM

    Here's a way to progress this idea that works. Have the class agree on a set of bulleted points to be covered in the questioning. Display that list by old or new technology, ensuring that everyone in the class can see it at all times, except the student playing the witness ( who has their back to it).

    Assign each class member a number. Instructor needs a piece of paper with that numbers list on it. Instructor stands where they can see each and all of class, witness, and displayed list.

    For either direct or cross the instructor calls a number and that student must ask a relevant, admissible question. Instructor calls another number and that student MUST employ the last given answer as the fuel for the next question. Instructor places mark against each number called so as to ensure 'fair' calls to all.

    Everyone (save witness) having the bullet list in front, but beyond the target witness, helps students to focus on relevant content, prioritisation, and logical progression. However, because the list is right in front of everybody it gets rid of that far too common habit of 'head buried in notes'.

    By the way, for those using the 3D approach ( see earlier articles on this blog), placing the list beyond the target witness allows the more advanced students to simultaneously experience: witness control, internal 3D visualisation of the scene being recounted by the witness, and the reminder of legal environment and legal needs from the bullet point list.

    The randomised approach has an advantage over the 'follow along the row of seats' approach because it requires everyone to be LISTENING and thinking all the time.