Good advocacy requires a mix of mental and performance skills. The latter are seen and heard as advocates examine, cross-examine, make objections, and make submissions. The mental skills are rarely consciously considered by the various courtroom audiences. This is much the same as film audiences who are unlikely to focus upon how much of their enjoyment of seeing their favourite actors and being immersed in the story depends upon the unseen screenwriter’s skill. It was that person who framed the issues, determined both how the story was to be told and the message (matching the argument in a court room) put across, and who then paid close attention to developing not only the actions by, but also the personalities of the characters (matching the witnesses in a court room) and the relationships among them.
Screenwriters must entertain unseen. Their future audience must be drawn in, captured, taken on a trip and leave satisfied. Trial advocates must persuade in person, in the here and now. Their audiences (which include decision maker, client, witnesses, opponents, and media) must be drawn in, captured, taken on a trip and leave persuaded. The advocate has the dual roles of ‘actor’ and screenwriter.
On stage, in a film, at trial, the story is important. A weak plot cannot be redeemed by good performance, though it can be made to appear better than it is. On the other hand the deserved consequence of a poor performance can be avoided by a good plot line. Thus the critics can write, “Great play…lesser actor”, “Stunning choreography not matched by the dancers”. The advice to screenwriters to pursue ‘the real but unusual’ (see Linda Aronson, ‘The 21st Century Screenplay’, Allen and Unwin, 2010, ISBN 978-1-74237-136-8) should be followed by trial advocates both in preparation and in performance. So much of what is seen and heard in courtrooms is ‘same old, same old’. Decision makers crave for something interesting, something that tweaks and keeps their interest.
The mental skills of advocacy have several components. The first is to draw upon knowledge of the applicable law (substantive, procedural and evidential). That knowledge is essential to understand the breadth of facts required to build a case that meets the legal elements, and to evaluate the available facts in terms of whether admissible or not, and whether sufficient or not to create a winning case.
The second aspect of the mental skills of advocacy is anticipation of the objective needs and the subjective wants of the various audiences. This includes assumptions about what one or more of those audiences know and believe. Screenwriters too must anticipate audience reaction but, unlike advocates, have no opportunity to change the presentation in response to audience changes. Good advocates anticipate how their opponent would run the case. That anticipation is a factor taken into account by the advocate when deciding when and how to present a specific set of facts. For example, knowing that the opponent must cross-examine on a particular topic the good advocate ensures that that topic has been well presented during examination-in-chief so that the opportunity for effective cross-examination is limited.
Good advocates also aim to satisfy the needs and wants of their decision-making audiences. There is a significant difference between a judicial decision maker and a jury of lay people. A judge uses the law as the primary filter of the facts. Knowing the legal elements, be that for a civil case or a criminal charge, the judge can decide whether any fact being asserted by a witness is relevant, whether it is admissible within the rules of evidence, and then what significance (known as weight) to give to it.
Jurors on the other hand put the facts first, run them through the filter of life’s experience, and then turn to the law. Our legal system reinforces this approach by leaving until the end of the trial the judge’s explanation to the jury of what are the legal principles to be applied.
A practical illustration of how these audiences demand distinctive approaches is in the use of topic headings during examination-in-chief. With a judicial decision maker the use of a legal topic heading is good technique: “Let’s now turn to the issue of performance - who did what after the contract was signed”. That topic statement indicates that the next set of questions is about performance (an oft used law term in contract disputes) and non-performance by the parties of their contract obligations. Supposing instead that the trial is before a jury then the topic could be, “Let’s now turn to what happened after the signing – who did what, when and where”.
A third aspect of the mental skills of advocacy is to identify, assess, and then prepare a response to the other environmental factors (that is, beyond whether it is a judge alone or jury trial) that will influence the reception of evidence and submissions. Only fools ignore fashion – be that the fashion of ideas, of themes, of expression. Lawyers are quick to direct their clients and witnesses on what clothes to wear and not wear to court – an instruction that can be labelled as ‘showing respect to the court’ or, ‘avoiding a prejudiced negative mindset from the decision maker’. Fashions change. Not so long ago it was expected that men would wear tie and coat in the witness box – an expectation that ensured that the honest witness who wore his tie and coat only to baptisms, weddings and funerals would look ‘shifty’ in the witness box because the clothes were uncomfortable. These days the sensible instruction is, “Look clean and tidy and hide anything that might make a judge or juror fear you”.
Fashion is fine, providing you fit in or seem to do so. To be viewed as an ‘outsider’ is to bring prejudice into the court room. To pretend the prejudice is not there is disingenuous. A party or a witness who carries the ‘outsider’ label is at a disadvantage, so much so that the advocate must consider, “How do I and this witness deal with the prejudice?” It is not enough to make a statement that allows the decision maker to baldly assert, “I am not prejudiced”. Such a statement merely cloaks the prejudice but successfully answers any appeal point: “Counsel, you have submitted that the decision below was affected by prejudice but where is the evidence of it, evidence that will counter the express denial of prejudice?”. The prejudice must be exposed and dealt with so that the decision makers then behave in a non-prejudiced way, even if along the classic lines of, “I don't like the members of ‘x’ group, but this one is an exception”.
The quest for ‘a fair trial before unbiased decision makers’ has long been recognised as a necessary part of our justice system. This is one of the environmental factors to which the advocate must pay attention. Suppression of media comment about a forthcoming case is a well-established path intended to dissipate likely prejudice by potential jurors. (Whether it is applied or not depends upon predominant legal mores in particular jurisdictions.) As well, or instead, there may be applications to delay the trial or move the venue. Analogously ‘a reasonable apprehension of bias’ is a long-standing basis to ask that a judge not hear a case. However the system presumes that judges, though human, are immune from the frailties that beset we lesser mortals. This is one of those convenient legal system myths. For those who want to believe that the taking of the judicial oath somehow brings a better person into being, see the rebuttal by Robert Trivers, ‘Deceit and Self-Deception (fooling yourself the better to fool others)’, Allen Lane, 2011, ISBN 978-0-713-99826-9.
So far the discussed aspects of the mental skills of advocacy – law and practice, audience needs and wants, and other environmental factors – have been tasks that begin in the preparation for a particular trial and then ‘go live’ at the trial. For the playwright or screenwriter the parallel process is the preparatory time when there are decisions about genre, about message, about scenario, about the symbiotic relationship between message and scenario, about the ‘spark’, about character arcs, action development, relationship development, and ‘critical, crisis moments’.
For both advocate and writers for stage and film there are the additional mental requirements of intuition and ‘instant’ reactive capacity. Aronson quotes decision-making expert Herbert Simon’s observation that, ‘intuition is analytical thinking frozen into habit and into the capacity for rapid response through recognition of familiar kinds of situations’ [Aronson, supra, page 31]. That observation mirrors the insights to be found in Jonah Lehrer’s, ‘The Decisive Moment - How the Brain Makes Up Its Mind’, 2009, Canongate, ISBN 978-84767-313-8. See also the discussion in ‘Lessons from the Neurosciences for Advocacy and Advocacy Teaching, at http://advocacyteaching.blogspot.com.au/2011/03/lessons-from-neurosciences-for-advocacy.html . As observed in that blog article (which draws extensively on Lehrer), “The ‘pay off’ for accumulated skill (aka wisdom) is that the twinges, the gut response, the intuition are not superficial. On the contrary, they reflect the distillation of all that has gone before, not consciously perceived, but being put to work at the right time. It is because so much of that process is ‘deep’ that it is impossible to precisely explain ‘why’ or ‘how’ it came to be applied.”
As mentioned earlier the advocate combines the roles of writer and actor. While the writer’s intuition is cut off once the script is finished, for the advocate the intuitive, reactive mental skills are essential at trial. Talent is a springboard to, not a guarantee of success. Talent, for those blessed with it, allows Simon’s ‘intuition’ to be developed more quickly than for those with less of it.
The performance skills of so many advocates are rudimentary and never advance beyond that. ‘One size fits all’ is the usual approach. Outside of the obvious reasons (such as, when your opponent is weak you only have to be slightly less weak to survive; it is so very easy to pass the blame for defeat to an absent witness or judge; and, the incompetence of counsel is a very difficult argument to raise on appeal) ‘traditional’ advocacy training is ‘basic’ and directed to beginner questioning and submission technique with hardly any attention to the required mental skills.
To advance beyond those early practical skills the advocate needs to acquire a deeper understanding of the underlying mental skills, the ability to be perceptively self-critical, to create that bank of quality experience from which sound intuition is drawn.
A telling example of how limited are most advocates is the manner in which they conduct an examination-in-chief of a witness for whom there is a written statement. It is often the case that the statement was prepared following the witness being interviewed by someone other than the advocate. Hence there is a lack of quality control. Moreover the statement taker is unlikely to have developed an overall case plan, let alone to understand the methods of making a narrative interesting. The default instruction to take a statement is to follow the chronology and not to deviate. Nevertheless the typical advocate is a slave to the written record, blind to anything that might exist beyond the words on the page. There is an untested assumption that the questioner was competent and the witness attentive during the interview. The advocate’s questions are wholly and solely responsive to the writing: the witness might as well be a computer-generated voice, cued to give back the words on the page. There is not even an attempt to consider how that information might be re-ordered so as to start and finish with something interesting to the decision maker.
To move beyond the fetters of the page the advocate needs the experience and the confidence to work with the witness to recreate a prioritised narrative, one with movement and depth. A witness statement is a foundation for case development not an end. Just as screenwriters use various forms of flashback, so the advocate must be able to control the presentation of space and time. The journey towards questioning skill for the advocate is to develop a capacity to visualise and hear what happened, to do so in 2D and ultimately in 3D. The master advocate is within the recreated scenes, magically touching the bits that the audience is now to see and hear through the combination of advocate questions and witness answers. That capacity depends upon the mental skills to conceptualise the whole case and parts within it, and to develop the ‘intuitive’ ability to seize the moment in the courtroom to exploit something said or left unsaid by a witness.
It is that ‘recreative’ capacity which enables the good advocate to extract a story from the witness that limits the opponent’s scope in cross-examination. But to limit is not to deny. The skilled cross-examiner takes both witness and other audiences on a journey, rather like an interesting and skilled guide can take people through an art exhibition. The cross-examiner opens the minds of the audiences to interpretations previously unrealised. The audiences see what was previously hidden, hear what was previously mute. They come to conclusions not previously considered. They are grateful to the cross examiner, even spell bound
To watch and listen to a good ‘reactive’ advocate is to experience a moving performance. Such an advocate seems effortlessly to respond to the messages and opportunities provided by a witness, an opponent, a trial judge. Such an advocate is a conductor. The audiences – decision makers, people in the gallery – will marvel at the smoothness, the effortless control, the change of direction, the ‘just enough’ pauses to allow audience reflection, the ease with which a witness (the advocate’s or the opponent’s) is taken on an unexpected journey through the field of facts, and – if they are acute – at how they, the audiences, have adopted the advocate’s argument well before he concludes it. That is persuasion and its masters are all too few.
Hugh Selby © 2012
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