Jack and Jill, the true story.

Fingers crossed that this piece on’ Jack and Jill’ gets better reviews than Adam Sandler’s latest movie with that name.

This good old nursery rhyme has been a quick and easy filler item in many advocacy courses, usually to introduce direct examination.　 First the instructor talks about open questions and avoiding questions that lead on an issue or lack proper foundation. 　Then the class is asked to elicit the story of Jack and Jill by having each student in turn ask the instructor (who saw and heard the whole awful incident) an appropriate open question that includes one of who, why, when, where, what, how.

Once the story is extracted the rhyme is put aside and forgotten, never to be used again with those students.　 That’s a mistake.　 And that’s why this post is all about taking the Jack and Jill story from filler to mainstream course content.　 My colleague Graeme Blank and I used it for all the following purposes just last week with a team of military lawyers who had no advocacy experience, many weren’t sure they wanted any, but everyone had to complete the five day intensive course.

We faced the usual ‘chicken and egg’ problem with such groups: Do we start with case analysis and possibly lose everyone except the mind game players, or do we start with some direct and let them make a complete mess of it?

We opted to start with the questions.　 There were the usual ‘bad’ habits of asking ‘Can you, would you, should you?’　 We know we’ve solved that problem when the students self correct, ‘Would you, oops, withdrawn’.　 The next problem is starting the questions with, ‘Did, do, does..?’ 　We explain how that gives the opponent an easy base from which to object, ‘leading on an issue’.　 Self correction quickly occurs with that too.　 And then there is that irresistible desire to use the all time lazy question, ‘What happened next?’

I doubt that there’s a reader of this blog who hasn't overused that question at trial.　 Indeed, in the absence of a proper case plan its use is inevitable because the advocate has given away control of the witness and surrendered to the witness’s unstructured, non-prioritised story.　 Put bluntly there’s no persuasion in a narrative that is extracted by, ‘What happened next?’

But not having introduced ‘case planning’ the better response is to point out that an advocate who asks that question is clearly not entitled to send a bill for professional services as the witness can tell the story just as badly for nothing.

Silence then reigns.　 Another question is needed but everyone lacks the means to find it.　 Here’s the opportunity to introduce students to the twin powers of using topic headings and piggy backing the next question on part of the answer just given by the witness.

Start again with Jack and Jill’s story but now we have headings, and piggy backed questions that contain one of the W or H words.　 First one student and then another discovers the amazing truth that if you listen to the answer the fuel for the next question is usually there.　 Out tumbles the story.　 Picking this student and then that one we’re quickly up the hill, at the well, Jack falls, a crown breaks and there’s Jill in trouble too.　 Sweet success.

Time to break the childhood spell, show them that the rhyme only worked because every child is left to their own imaginings as to what it describes.　 What a nightmare if there is a jury to be persuaded, each juror with different imaginings.　 Where is that hill?　 Where did they start from?　 How big or small a hill is it?　 What’s the route to get up the hill?　 Was one of them carrying an empty bucket or was there a pail of water waiting for them at the top?　 Where’s the mention of the well in the nursery rhyme?　 Isn’t that just a traditional touch added by the illustrators of nursery books? Why did Jack fall down?　 Did Jill push him?　 What is this crown thing: part of his head or something on his head?　 How did Jill fall?　 Was the hill inherently unsafe?　 Is this a civil case in which Jack and Jill are suing someone who sent them up the hill for negligence?　 Is this a criminal case in which　 Jack is the victim and Jill the aggressor?　 Is it something else altogether?

Why does it matter what kind of case it is?　 It matters because the answer points the way to how the story should be told. If Jack and Jill are the victims of negligence then let’s start the story with crown breaking, falling and tumbling. And let it be painful, shocking, and a long way down.　 If Jill is the aggressor then let’s show her intent by how she lured Jack to go up that hill, how she caused him harm and how she contrived to adopt a mantle of innocence by tumbling after him. 　Perhaps there’s another explanation as to why they were there, an explanation that suggests third party involvement.

The class in now stumbling around on the edges of discovery: a case theory matters. 　So soon as you have it the pieces more readily fall into the ‘right’ place. We toss a coin and decide it’s a criminal assault case.　 Next step: is it bench or jury trial?　 Assume the former for beginner advocates.　 Step up to the white board and agree on the legal elements of the charge.　 Marshall the facts from the rhyme against the appropriate element.　 Identify the missing detail.　 Prioritise by applying the guideline, 　‘Start strong, bury the weak stuff in the middle, and finish strong’.　 Show all that on the whiteboard that everyone can see.

Now back to the beginning.　 But this time, using the white board as a guide for each student, tell the nursery rhyme as a persuasive story.　 Sure it takes longer but the topic headings, the piggy back routine, and focus on persuasion build a much clearer picture that is shared among all listeners. 　That’s progress and everyone knows it.　 Even the, “I don’t want to be here” see that they have benefited.

But we’re not done.　 We’ve only looked at case theory from legal elements and facts. 　Those are but two of the four essential factors.　 We, the class, must still pay attention to the rules of evidence admissibility and the atmospherics that influence every trial.　 The notion that the rules of evidence have a place in real life lawyering comes slowly to many students. 　They don't make the connection between the appellate cases and the witness examination they are now attempting.　 It even takes a while to join the dots between ‘making and responding to objections’ and those evidence rules.

Back to the whiteboard and a class discussion about hearsay. 　Who is reporting what and how? 　What exceptions will get the information into evidence?　 Then on to how can I call this character evidence to show that Jack is a really good guy and Jill has a list of priors long enough to make her a winter coat?

As for the ‘atmospherics’, are you too scoffing at the idea that there could be any in a Jack and Jill battle?　 Think again. 　Jack looks like an ugly, brawny, ‘Don’t mess with me’ kind of guy.　 Jill is an attractive package and she knows how to use those charms.　 There’s an inequality here that has to be redressed by advocacy skill. 　The prosecutor has the challenges of eliciting a persuasive story from Jack, setting him up to resist a cross examination from Jill’s attorney, doing that so well that Jill has to go into evidence and then having her self destruct during cross examination.

And the prosecutor can do that if he or she thinks outside the box. 　A good interview with the victim will have have included this question, “ Jack, why did you need some water?”　 To which the answer is, ‘To water the beanstalk’. 　With a little more probing it will come out that Jill only came into his life after some loose talk about golden eggs and a magical crown over a drinking session in a rough nightspot.

Voila we have the cross of Jill. 　It’s a cross that is a cross-indoctrination of the audience rather than a cross-hectoring of Jill.　 It’s nice because there’s no need to get nasty with a beautiful devil.　 It moves with pebbles not boulders. 　Here’s an extract:

Q: That beanstalk was getting bigger?

A:　 Yes

Q:　 Needed more water?

A:　 Yes

Q: So more trips up the hill?

A:　 Yes

Q: Done by Jack?

A:　 Yes

Q: Usually alone?

A: Yes

Q: And he’d return safely?

A:　 Yes

Q:　 He never told you that he fell on those trips?

A:　 No

Q:　 Always came back with his crown?

A:　 Yes

Q:　 The magical crown?

A:　 Yes

Q: Went up with you that day?

A:　 Yes

Q:　 No one else there?

A:　 No

Q:　 He fell down?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 The crown came off?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 He got to the bottom without his crown?

A:　 Yes

Q:　 It disappeared?

A:　 Yes

Q:　 You tumbled?

A:　 Yes

Q:　 But there was no one to push you over?

A:　 No

Q:　 Just you and him on the hill?

A:　 Yes

Q:　 On this fateful day when the two of you fall?

A:　 Yes

Q: But you fall after him?

A:　 Yes

Q:　 In his tracks?

A:　 Yes

Q:　 That’s a very nice piece of jewellery you’re wearing isn’t it?

A:　 Yes

Q:　 New isn’t it?

A:　 Yes

Q:　 That hill’s a land of opportunity isn’t it?

A:　 Ugh?


I see that Dreamworks’ Puss N Boots is slinking out the back of the courtroom. 　He’s been getting a much better run from the film critics than Adam.　 Everyone is buying his version of the quest for the magic beans.　 Putting it about on the big screen (in 3D no less) that both Jack and Jill are outlaw ruffians was a step too far. 　Clearly it just occurred to him that if he stayed in the courtroom he might be compelled to testify. 　Jack might do something unpleasant to him to right the wrong to his reputation.　 And Kitty soft paws would not take kindly to finding that Jill still had a place in Puss’ scruffy heart.

Hugh Selby (c) December 2011