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Friday, January 11, 2013

Direct Examination, Vulnerability, and Trust


Direct examination has an extremely simple goal, to get the facts out in the most persuasive manner possible. This is easier said than done though, because our own lawyerly nature often gets in the way of effectively communicating. In other words, lawyers are not very good at letting someone else takes center stage. This is particularly problematic when you're dealing with students who are concerned about grades, the opinion of the professor, or what their peers are thinking. I wanted to take a few moments and talk with you about some ideas that I use when teaching direct examination to deal with the expectations of students and the need to develop the skill effectively.

I believe direct examination is one of the most difficult skills to master and teach. If you stop and think about it, you have less control during direct examination than during almost any other part of the trial. It feels like you are tossing open-ended questions to the witness, most of them softballs, and you find yourself frustrated and amazed when they fail to properly answer the question. That's the problem - your expectations. 

Teaching lawyers to let go of their expectations of how the question should be answered, and getting them to focus instead on helping the witness to share what they know, in a way that is most natural and helpful for the witness and the jury, is the essence of effectively teaching direct examination. I like to take an approach that builds upon acting in the moment, and relies upon the human connection to maximize interest.

I've blogged about the need to use concrete words, visual images that create credibility, relatively recently. I think it is important for our witnesses during direct examination to model this type of language. It is the struggle towards believability that is so crucial during direct examination. It is imperative to our case that the jury not only hear, but believe, the testimony of our witnesses on direct. This pressure, this need, drives lawyers to try to insert the answer they need into the mouth of a witness during direct examination.  It reduces the witness's credibility. They begin to sound like attorneys, and quite frankly attorneys are often not believable. 

Most direct examinations lose the ability to be persuasive when the lawyer lets themselves get in the way of the process. So how can we go about ensuring that our direct examinations, and the directs of our students,  don't fall into that trap? You must train your students from the beginning to practice communication techniques that work. Let me share what I do the very first day of class in Trial Advocacy.

I accept as a given that on the first day of trial advocacy class I have to establish a channel of communication with the student to make them receptive. I am very careful to choose drills and activities in the first class designed to open the door to effective communication. I have found that making myself vulnerable, trusting the students, can be very effective - particularly when I ask them to do the same thing. How to accomplish this?

Once I have gone through the syllabus and identified my expectations for the semester, the fun begins.

I start by making certain that all of the laptops are closed, while also informing them that laptops, cell phones, iPads, tablets and the like will not be used during class, except as support when performing an advocacy skill. I do allow for the use of tablets when the Advocate is actually conducting an advocacy skill because I think it likely they will be using them in practice for that purpose. We then all gather together at the front of the courtroom.

We get a series of chairs and create a circle, sitting so that everyone can see everyone else. I tell the students that I want to get to know them, and while that is part of the process, the teaching has also begun. I go around the circle from student to student asking them questions about themselves. This allows me to get to know the student so that I can begin to place them contextually into my thoughts about how they're going to perform this semester. At the same time I am demonstrating all of the fundamental skills of direct examination. I have no notes, I do not ask closed ended or leading questions, and I make certain that each subject we talk about is addressed in depth. I use concrete descriptive questions and rely upon headlines when I want to transition between one topic and another. A really cool thing happens when you use this technique - you get to know your students relatively quickly. It requires them share.

By the time you make it all the way around the circle you've identified the person who thinks they're God's gift advocacy, the individual who's taking this course because they are terrified of public speaking and want to overcome that fear, those who think they might make the advocacy team if they impress you, and occasionally the ones that are wondering why in the world they are in this class and is it too late to drop it! 

Once I have worked all the way through the class I stop, look them all in the eye and thank them for being open and honest - for trusting me not to embarrass them and for sharing. I then identify the specific direct examination skills I have just modeled. After that small piece of teaching (which was also assigned in the reading for the first class) I tell them turn about is fair play. They can ask me anything they want and I will answer truthfully, as long as they use the right questions and follow these rules:

1. You cannot ask me about my  personal physical relationships.
2.  Every question must  be open-ended.
3.  If you want to change subjects, you have to use a headline so all of us can tell what you want to talk about. 

An amazing thing happens when you trust your students like this. From a skills perspective they are forced to utilize the questioning techniques necessary to form an effective direct examination. They have no notes and as a consequence are forced to listen to each and every question and the answer. The process becomes their lifeline to getting through the drill. The best direct examinations are built on the idea of asking, listening to the answer, and then asking again. There is an additional benefit to this approach that cannot be overstated - extending trust to them creates an obligation in them to trust you.

Trust is the key to unlocking the potential of each and every student. Trust implies vulnerability, and having the courage to be vulnerable actually establishes the strength of your position. Think about all the personal dynamics involved in using this sort of approach when you're teaching young men and women. If you try it you may discover that you get a great deal of buy in. More importantly, you might get to know your students an entirely different way. Sometimes that's not a bad thing. They also get to know you, and personal connections make us care - well, most of the time.

What techniques do you use on the first day of class? 

All the best,


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