Friday, June 8, 2012
After leaving the Educating Advocates conference in Gulfport two weeks ago, I made a tremendous personal and professional sacrifice by traveling to Ireland to teach in a study abroad program that is jointly run by the UMKC and SIU law schools. Some people are called upon in life to go the extra frequent flier mile from time to time, and this year I took my turn. And if the course administrators would let me, I'd make the same sacrifice next year.
What does this have to do with advocacy? I'm teaching a class on war crimes tribunals, and, since I also teach evidence and trial advocacy, we take a look at some of the advocacy triumphs and mistakes that have occurred and continue to occur in these tribunals. For some truly epic advocacy gaffes, I recommend the documentary film Milosevic on Trial, which includes actual trial footage of the unrepentant Milosevic smirking his way through trial at the expense of his often hapless opponents. There is a great scene in which a paramilitary captain theatrically disavows his sworn statement on the stand after being cross-examined by Milosevic. The panicked prosecutor attempts to impeach the captain, only to be interrupted by the judge, who advises him that he might want to reconsider the wisdom of undermining the credibility of his own witness. Another witness and Milosevic engage in a name-calling battle in which the word "swine" is used with great effect. There are many opportunities, in short, to pause the DVD and discuss the good, bad and ugly of the trial from an advocacy perspective.
Two days ago, our student group visited the Criminal Courts complex in Dublin. There were three murder trials and a rape trial on the docket. I was able to watch jury selection, talk to a couple of barristers, and watch the prosecution's opening in a murder trial.
Jury selection is much different than the voir dire we conduct in the states. The only information known to the attorneys about the jurors is the name and occupation of the juror. That's all. The judge gives some prefatory instructions to the jurors, advising them that they have a duty to advise the court if they know the defendant or anything about the crime. The jurors are then sworn individually. Before each juror takes the oath, the attorneys must decide--then and there, without the benefit of questioning--whether to challenge the witness. Each side gets 7 peremptory challenges. These are true peremptories, without the requirement of any explanation of all. If there is a challenge for cause, the attorney must also make it before the juror takes the oath. The most common challenge for cause is that the juror and attorney know each other in some way. For a murder trial that will take a week and a half, it took about 20 minutes to impanel the jury. Jurors can also challenge themselves by giving reasons they don't think they'll be able to give the trial their full time or attention; I saw several such challenges granted almost instantly by the judge, in one case before the juror could even finish her sentence.
I have often thought we'd be better served by such a system in the United States. Basically, the attorneys try the case in front the first 12 people in the box who meet the fairly broad criteria for service. I do, of course, recognize the disadvantage of not being able to explore the potential bias of the jurors, but let's be honest about this: in most courtrooms attorneys use voir dire for other purposes, such as manipulating the jury or trying the case before opening statements are ever given.
Speaking of opening statements, in an Irish criminal trial the prosecution opens, but the defense does not have the opportunity to open until the close of the prosecution's case. The students and I watched a 20-minute prosecution opening statement in a drug-related shotgun slaying.
Bad advocacy is universal, I'm sorry to report. The opening statement reminded me of an example Tom Singer used to give in Jim Seckinger's intensive trial advocacy course. It began by repeating nearly all of the prefatory instructions the judge had given the jury about how a criminal trial is organized. It thanked the jurors for fulfilling their constitutional duty to well and truly judge the case. It lectured on the differences between the burdens of proof in a civil and criminal case. It was loaded with legal terms and jargon, some of which were explained in a patronizing manner. It praised the defense for its anticipated cooperation in not contesting the admissibility of some documents and evidence. It explained that sometimes, witnesses are called out of order and documents are introduced out of sequence because of scheduling requirements. It read aloud the charges against the defendant. Ten minutes into the opening statement, and only then, did the prosecution mention for the first time the story of the case. But it was a rambling, incoherent and disconnected story. I still don't know what happened in the case, and unfortunately, I wasn't able to watch the rest of the trial to find out.
I had expected far more from a man wearing a black robe and wig and bearing the title of barrister. In reality, it was no different from the hundreds of abysmal opening statements that are delivered in American courtrooms every day.
It was heartening to see that most of the students intuitively recognized the problems with this opening statement. They seemed genuinely shocked that it had been so ineffective. Back on the bus, a student asked, "is this how trials are supposed to go?" I advised the student that either Rafe Foreman (who teaches advocacy at UMKC) or myself would fail them for giving a similar opening statement. I then spent several minutes explaining what was wrong with this opening statement.
The problem, of course, is that even though trials are not supposed to go like this, they do. And the challenge, as Hugh Selby has pointed out before on this blog, is to come up with a way to help our students rise above the mediocre advocacy that so many lawyers settle for in the courtroom.