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Saturday, February 23, 2013

Principles of Advocacy Teaching

Some advocacy teachers approach advocacy teaching in the trial order: opening, chief, cross and closing. Case analysis drops in. Others start with closing - because it requires an understanding of the case. Still others take the approach of evidence first, so chief and cross, followed by addresses - opening and closing. Once again, case analysis drops in.

Given that each of these ways leads to some students being excellent there is always enough evidence to support doing the next course, and the next, in the same way. The less successful students just 'don't get it' and are disregarded as being the cause of their inadequacy. Given this natural order of things there hasn't been widely publicised discussion about such questions as, 'what is the approach to teaching advocacy most likely to maximise learning for the participants?'

The relevance of this question is heightened by the increasing use of 'online' teaching and learning materials. Because the usual on line formats lack the motivational, interconnectedness, and spontaneous aspects of good face to face education there needs to be an 'up front' declaration of not only what will be taught but also why it will be taught in a particular order and in a particular manner. Viewers want to know 'the promise' and they want to know 'why the promise comes in this way' and they want both from the start. Just like a good opening statement isn’t it?

What follows are most of the principles that guide my approach to teaching advocacy. I say ‘most’ because I’m bound to overlook some. The purpose of sharing them is to provoke discussion both now on this blog (so please use the COMMENT function or submit your article), and at EATS2013 (22-24 May, Stetson College of Law) about the what and why of best practice advocacy teaching.

These principles reflect my quarter century journey of teaching discovery, a journey marked by my incremental abandonment of nearly everything I was taught both about advocacy and how to teach it.

Principle #1: Practise what you preach. That's hardly novel, but let's rephrase it as: Teaching is an act of persuasion. Advocacy is being persuasive. Teaching advocacy should mirror the techniques of good advocacy. I like to think of advocacy as a trade skill, rather like being a car mechanic. What matters with the problem car is either the ability to fix it - preferred, or failing that, a persuasive reason as to why it can't be fixed. So it is with advocacy: here's how we'll win the case - preferred, or, 'our focus is a dignified, harm minimised exit'. As an advocacy teacher, like the mechanic instructor, I want the students to acquire those 'win well or lose well' skills.

Principle #2: Persuasion meets the emotional wants and the objective needs of the multiple audiences (eg. decision makers, opponents, clients, public gallery). Every politician, advertiser, radio shock jock, religious manipulator, real estate and car retailer, cancer and weight loss scammer, successful trial lawyer, and successful appellate lawyer has some 'intuitive' grasp of this principle and the repeat capacity to act on it. The 'objective needs' have to do with correctly applying the law and 'being seen and heard to do justice'. The emotional wants have to do with showing empathy for victims, as well as dealing with deep- seated prejudices founded in race, gender, sexual preference, religion, and responses to aspects of the advocate's personality.

Principle #3: Advocacy is a blood sport in which performance reflects a combination of the learning from past experience, thorough preparation, and a 'born with' talent to seize the moment at trial. It used to be said that 'good advocates are born not made'. That gave way to the belief that, 'good advocates are made not born'. Common sense, derived from our life experience, tells us that, 'the best advocates are born and made, competent advocates are made, and not everyone has the capacity to be made'. 

Principle #4: Advocacy at trial and on appeal produces a winner and a loser. There are no ties. High-level competition leaves little to chance: preparation requires knowing the opponent’s case along with your own. Those who can’t anticipate the other argument and the contrary facts should stick to being well-informed spectators. Basic advocacy training sorts out those who should do and those who should view.

Principle #5: All sports have rules. Advocacy is a sport so know the rules. Advocacy is a sport so knowledge of the rules is both offensive - to use against the opponent - and defensive - to be able to withstand rule based attacks from the opponent. As with sport the advocacy rules are definitional (cause of action, elements of the criminal charge, procedural, sportscraft ethics) and govern play (evidential rules of relevance and admissibility, advocate's conduct, time between meal breaks etc.). It follows that advocacy students must make mastery of the FRE and/or their State's evidence provisions a high order task both in preparation and performance. My experience is that this is much easier to write here than to achieve as a teacher. Part of the problem is that far too often the teaching of evidence is not tethered to advocacy instruction. This is a strange state of affairs: I can't say that outside of law schools I've met someone who carefully learned the rules of a game but avoided ever playing it or watching others play it.

Principle #6: Every trial and appeal takes place in a real world environment in which being dispassionate is aspirational rather than what happens. Court rooms seem designed to keep the world at bay, by having no windows or dirty windows that when clean allow a limited view of the sky, but the reality is that everyday hopes and fears are part of the baggage that everyone present brings into the court room. The advocate recognises that baggage, co-opting that which is helpful, and doing their best to minimise the effect of that which is unhelpful to their cause.

Principle #7: Be clear that the only way to become skilled is by repeated failure and occasional success. I start my courses by saying that we are on an 'error driven' journey, that by experiencing our and others' errors we can learn an approach that works. 'Do not fear failure', I say, 'Embrace it'. Of course, when I make some beginner's error I can point out that there is never too much practice. Students like it when the teacher stumbles - providing it is not too often.

Principle #8: A teacher who hogs the critique role is failing their students by making them passive observers when they could be active participants. When students critique their peers they must apply what you have taught and they should have learned. Critique is a valuable self-reinforcement. What's more, the steps of being positive, picking a real issue, explaining the problem, and suggesting the fix - all done succinctly and with quiet confidence - mirror an effective technique in closing argument. There is another lasting benefit from requiring the students to critique: many will never be professional advocates but may have to choose such an advocate to run a case. A practised critique skill helps to make a choice that is informed by skill, rather than by friendship or gossip.

Principle #9: There is no substitute for experience in advancing skills learning. Effective student learning requires the active participation and oversight of an advocate who can teach. There’s some current nonsense that you can give students just a bit of teaching and then leave them in their groups to advance. Sure you can leave them in their groups to practise, but you – the teacher with advocacy experience - have to come back time and time again to check that practice on that task is leading to perfection. In order for them to advance the teacher must lead.

Principle #10: The teaching, like the advocacy, must lay a foundation and move incrementally. People learn, and they remember, when the pieces are small, when they can achieve success with the latest small piece, and when they can grasp the whole picture. It follows that the overarching task - be that direct, cross, aligning the facts with the legal issues, etc. - must be broken up by the instructor into a series of progressive steps, each of which is explained, demonstrated, practised and critiqued. 

Principle #11: Keep the facts simple and unchanged while the basic techniques are being learned. Changing the facts is something to be done when the students have acquired some confidence about the form of the question, topic transition, witness control, and organisation of argument. Changing the facts too early is rather like the mechanic instructor discussing hybrids when some in the class are still not sure about the four stroke cycle. I usually use the first verse of the nursery rhyme, ‘Jack and Jill’ as my beginners class script because the students recall it, and the class quickly finds that there are many interpretations of the rhyme – caused mainly by the variable illustrations in the nursery books or on the TV Playschool backdrops. Usefully the verse lends itself to Jill having criminally assaulted Jack, or a civil case for damages founded in negligence, assault, or environmental malfeasance.

Principle #12: Never use a written script with beginners if you have a video clip/live demonstration of the same facts. A written script inevitably leaves much to the imagination. That's very useful when students are more advanced. But, in the early stages, when we are trying to inculcate the virtues of story telling and picture reconstruction into question technique, then a commonly shared video clip, or incident acted out in front of the class, is a better resource. If anyone has one or more clips of ‘Jack and Jill’ please let me know.

Principle #13: A lawyer advocate's craft is to be persuasive with law and fact. It follows that as teachers we must inculcate into every student the invariable first question: 'what is the law?', followed by, "How do the facts that we know fit around those legal requirements?'. For me the answer to the question, ' What is the first advocacy topic?' is 'case analysis'. Until that is done there is a lack of common attitudes held by teacher and students. When it is done then there is the framework upon which the questioning, objecting and address skills can be built.

Principle #14: Good case analysis moves seamlessly from preparation to court room. It is inefficient to do twice what can be done well once. Linear and matrix approaches to case analysis fail this requirement. That’s not surprising because they inherently lack the capacity to respond flexibly to the inevitable changing environment of a trial or appeal. I have found that randomised ‘mind map’ approaches, using a white board rather than an Eapplication, work best. The use of large white board on which issues and facts can be shown, along with possible connections among them, and prioritisation for the order in which to present them at the hearing, draws in the students, has them involved, and leads to a clear ‘in court’ presentation plan.

Principle #15: Experience teaches that there are some advocacy bad habits that are almost universal. Such habits need to be dealt with immediately and firmly before they become entrenched. Some examples are: speaking too quickly, no pauses to allow the audience and the advocate to reflect, not listening to the answer, asking questions that begin with any of, “could you, would you, can you, did, does, I put it to you, I’d like to ask you”, anxiety twitches, swaying. Because there are bound to be a number of offenders in any class it is easy to make the eradication exercise a game. The usual sequence is: student makes error, instructor points out error, student understands, student tries again and repeats the error, class laughs, student tries again and catches themselves making the error. Student is now on the road to recovery.

Principle #16: Dealing with student ‘push back’ is a test both of your advocacy and teaching skills and the student’s advocacy potential and learning skills. Students like jurors come to us with more secrets than we can ever know. They do and say things for reasons beyond our grasp. Responding to ‘push back’ is similar to responding to the judge at trial or on appeal who is against you for good or bad reasons. We have to demonstrate listening, self-control, masking, and content rich answering skills. And in those cases where there is no way other than the ‘put down’ to deal with a repeat offender then the barb has – like the cross indoctrination retort – to be a thing of fatal beauty.

Hugh Selby © October 2012.

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