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Saturday, October 15, 2011

Sealing Case Analysis with a Telegram

Sealing Case Analysis with a Telegram

My good friend (and high priest/shaman of advocacy teaching) Josh Karton created an innovative advocacy exercise called the 10 word telegram. The object of the exercise is to boil the essence of a case into ten words. Those ten words must explain the problem, identify the theme at the heart of the case, and request specific relief. This exercise is one of the most difficult, yet rewarding, experiences a young advocate can have.

Consider for a moment the genesis and the genius of the exercise. In a bygone era when telegrams were expensive, every word had to be freighted with meaning. The incentive to send the right message at the right price to obtain the desired effect or result required considerable ingenuity, creativity and precision. There was no room for ambiguity, no tolerance for wasted words. The recipient of the telegram was unlikely to be in a position to request clarification or ask follow up questions.

Perhaps the closest we can come to the 10 word telegram in modern usage is the text message or tweet, both of which are limited to a discrete number of characters. The incentive for precision is lacking in these forms of communication, however, because they are cheap and instantaneous. If I send an unclear text, the recipient can ask for more information immediately, as many times as necessary before the message gets through.

The 10 word telegram forces an advocate to cut through the dense layers of legal jargon that have the effect of obscuring, rather than clarifying, the heart of the case. It is nearly impossible to create an effective telegram in a single draft; indeed, it can sometimes take a few hours to get the telegram just right. It is also difficult to do the exercise alone. Small groups seem to be ideal for creating good telegrams.

I've been using Josh's exercise to help with theme development. I usually assign students to do the exercise after their case analysis has been completed but before they work on opening statements. I've been pleased with the results of using this exercise for theme development.

Josh uses the telegrams as a launching pad for improving oral advocacy skills. Student advocates must present their entire case as a telegram as Josh coaches them on eye contact, voice modulation, pacing, emotion, emphasis, gestures, body placement and movement. I've seen him work with a single student on a single telegram for most of a morning or afternoon advocacy teaching session. I'm always amazed at how much can be contained in, and flow out from, ten words.

Lacking Josh's theater training, I haven't used the telegram exercise to work on other advocacy skills. I hope to improve my own observational and coaching skills sufficiently to be able to do that at some point in the future.

But in the meantime, I continue to use the exercise for theme development. And recently, I've discovered another, closely related use for it. The 10 word telegram is a great way to help crystallize a case analysis exercise.

After reading Hugh Selby's posts on the circle method of case analysis, I decided to experiment with case analysis with my fall trial team. We started off with a student-conducted circle analysis. I then assigned them to use that analysis as the basis for a traditional case analysis memorandum, which includes fact summaries, witness summaries, an elements and proof analysis, legal and factual theories of the case, and an evidentiary analysis. When they had completed their (lengthy and exhaustive) memoranda, we met again as a group to discuss what we had learned from the case analysis. I then separated them into plaintiff and defense teams, with the task of producing a 10 word telegram to capture the essence of their case.

The telegram exercise was an amazing capstone to the case analysis experience. It was a lot of work--hard work--but it brought everything together in a way I haven't seen or experienced before.

I believe the exercise can be a springboard to assist in teaching many other advocacy skills. I am interested to know if others have tried this exercise, or others like it. If you have, please share your observations with us in a comment to this blog post, or write a post of your own and email it to cwbehan@gmail.com for publication in this blog.

Sent from my iPad

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