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Wednesday, May 1, 2013

Is it Advocacy Appreciation or Advocacy Skill that we seek? An EATS 2013 forum.

“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we've been waiting for. We are the change that we seek.” 
 Barack Obama

Is it advocacy appreciation or advocacy skill that is a foundation step in 21st century legal education?  That is the question.

This paper proposes that ‘advocacy appreciation’ ought to be a core element in first year law school programs, but that our trial and appellate advocacy programs should be packaged as part of a litigation stream, with other streams being taken by those students with a more transactional bent. 

There’s a touchstone survey that we advocacy teachers must conduct, a survey of all those trial and appellate judges who take clerks from just graduated law students.  We should be asking those judges how they rate an applicant’s participation in pre-graduate legal skill activities including paralegal work, trial advocacy, and mooting.  Do they distinguish among those activities?  How do those activities rate against such other criteria as law school ranking, academic grades in substantive law subjects, sporting clubs, community activities etc.?

Why should we conduct that survey?  Because those judges, along with jurors, are the end user audiences of the students who have decided, ‘I want to be an advocate’, some of whom have enrolled in trial advocacy courses, joined the mooting teams, or both.  If our courses are rated highly with the judges (the jurors being an inaccessible consumer group) then we have some leverage inside the law schools.  If, on the other hand, the judges are indifferent to, or critical of our training then, let’s face it, we are mere farters in that fog which envelops ‘ a legal education’.

Given the time and expense of that legal education, law students, and their schools, need some appreciation of the present and short term market for legal services, be that in choosing public or private sector, large or small firm, full service or boutique, transactional or litigation.

Doubtless there are some reliable indicators as to the job opportunities for new  lawyers that are well known to the American profession, but being an outsider I resorted to googling and limited my inquiries to our EATS workshop’s host State of Florida. The available information, mentioned below, is relevant but far from comprehensive.

State Court Caseload Statistics (http://www.courtstatistics.org/Other-Pages/StateCourtCaseloadStatistics.aspx )  reports that the tort cases trend in Florida general jurisdiction courts for the  10 years, 2001 to 2010, peaked in 2002 and has declined steadily ever since, to the extent of  20% ( from 50,925, down to 39,709).  As I read the circuit civil dispositions for fiscal year 2009-2010 ( see http://www.flcourts.org/gen_public/stats/ReferenceGuide09-10/Ch4_Accessible.pdf  ) some 42.5% were disposed of by no trial, which I take to mean were settled without substantive hearing. Jury trials took up only 0.2%, and bench trials only 0.1%. The other categories in the pie graph were not readily intelligible to a foreign lawyer, but don’t alter the miniscule share of trial advocacy across the range of civil suits.

The felony cases trend in the same Florida courts over that same 2001 to 2010 period leaped upward, almost doubling between 2001 and 2007 before settling back to a mere 1.5 times  (State Court Caseload Statistics, ibid).  

But how are those felony cases being dealt with?  Is the rising number of felony matters bringing a sustained surge in jury trials?  We can get some data from http://www.flcourts.org/gen_public/stats/reference_guide09_10.shtml  

1.       Circuit court criminal statistics reveals that the dispositions spread was property crime at 53%, drugs 29%, violent crime 2%, capital murder 0.1%, and other crime against persons 17%  [all rounded %];
2.      97.8% of cases are disposed of without trial; a mere 2.1 % have a jury; 0.1 % have a bench trial.  There’s a conviction rate of 85%. Clearly there’s a big demand for being good at plea bargaining and at sentencing hearings.

Those figures don’t suggest a law market demand for an increasing number of trial lawyers, though we need to know more about trial lawyer retirements, trends in trial lawyer income, etc. to get adequate data from which to offer advice to any law student. 

Some of that information has come from the Florida Bar who kindly provided recent membership figures. From just under 80,000 in 2005 they increased by 20% in just 8 years to almost 96,000 in April, 2013.  

By way of a comparison the Law Council of Australia  (the peak body for the various State Lawyers’ Associations) reported that:
At the end of June 2008, the Australian legal services sector employed 99,696 people ( thus lawyers, paralegals, support staff), serving a national population of some 22.5 million in an area very similar to that of the USA (excluding Alaska). Florida now has a population of some 19.3 million.

Of those people :
5,154 (5.2 per cent) were either barristers (that is, specialist trial and appellate advocates) or employed by barristers;
5,108 (5.1 per cent) were employed in community legal services, including legal aid commissions, Aboriginal legal services and community legal centres;
4,514 (4.5 per cent) worked in the offices of government solicitors or public prosecutors; and
84,921 (85.2 per cent) worked in “other” legal services including private law firms.

I was hoping to give you some breakdown into fields of practice – and especially some data on how many Florida lawyers held themselves out as litigation specialists.  Sadly the Florida Bar doesn’t keep any data on its members’ areas of practice.

The usual rule in Australia is that a barrister is assisted by a solicitor with a strong interest in litigation.  Barristers work as ‘sole practitioners’, while most solicitors work in firms.  The solicitor ‘briefs’ the barrister. Most barristers began their lawyer careers as solicitors.   We might, therefore, use a generous guestimate of around 10,000 Australian lawyers, that is 10% of the whole legal sector work population, who have a strong interest in litigation.  Would the Florida litigation specialists be around 10% of the Florida Bar, more, or less? 

The point about 10%, or 15% if you’d like to be especially generous, is that being a skilled trial or appellate advocate is, and will remain, a minority interest.  Some 85%  or more of our lawyer colleagues would like to avoid litigation, both as a career choice, and in their personal lives.

There are some straightforward implications of these percentages and trends in a law education market where, I am told, enrolments have dipped but influential voices are calling for law schools to be more pro-active in making their graduates ‘market ready’.

‘Market ready’ shifts the cost of transforming a book- learned -potential lawyer into an income earning, profit enhancing employee lawyer from the employer and back to the law school and its fee payers.

‘Market ready’ means that law graduates have had experience (probably in simulations) in interviewing, managing files, conducting simple but high rate of return legal transactions, writing letters to clients and other lawyers that don’t need to be rewritten ab initio by their supervisor, being able to appear in straightforward interlocutory matters, knowing and dealing with the tax implications that arise across a range of legal transactions, etc.

‘Market ready’ does not reach into acquiring trial advocacy or appellate advocacy skills.  That is a step too far.

When law schools are being assailed for costing too much the pragmatic Law School Dean will see no benefits to providing training in a skill that seems, at first glance, to be of such little worth or interest to the great majority of the student body.

Our challenge, as advocacy teachers, is to persuade our law teaching colleagues that an advocacy appreciation is a foundation element of a good legal education and that it can be provided with quality at little cost.   That is an immediate aim.  Looking some years hence we should be promoting ‘streaming’ within law school programs so that those interested in advocacy can gain replicable skills before graduation.

Imagine that we are taking part in the following conversation, as the person giving answers.  The questions are coming from our academic colleagues who are joined by those who control the purse strings.

The answers are incomplete. There is more to be said and your ‘more’ is the point of our workshop discussion.

Q:  Why should there be any attention to trial advocacy during a  law degree?

Us:  Law students (and a number of law academics too) need to understand that facts with their chameleon like nature are vital to the development of legal principles – both statute and judge made.  They also need to grasp that it’s the skill of trial advocacy- born of talent, developed by experience and informed critique – that gives facts their particular hue in the atmosphere of courtrooms.  That atmosphere brings the outside inside – a truth well known to anyone who has a run a trial which is hot news.

Much law school teaching is based upon appellate decisions so that the facts are a given.  This leads so many law students to dismiss fact finding as, in some ill-defined way, inferior to argument about legal principles.  That prejudice carries over into practice so that dealing inadequately with the facts when advising or drafting transactions then becomes the cause of later litigation.

Q: What aspects of trial advocacy, then, do all today’s law students need to grasp?

Us: Trial advocacy is a performance art, just as acting, dancing, playing a musical instrument, high level sports playing are also.  We welcome formal and informal ‘appreciation training’ for all of those activities but deny its relevance to court room advocacy.  Wouldn’t you like to know that you can recognise a good courtroom trial or appellate advocate, that you have objective skills to recommend an advocate to a client, that you are not beholden to media misinformation to sort out the truly skilled from the self-preening?

So many of us, enthusiastic sports player or ‘wantabee’ band member, have been wisely told to put aside the ball or the bat or the instrument and to join the enthusiastic audience.  Sadly, the same good advice has not been given to many court room trial advocates who mistake an interest in advocacy, or a passion for a cause, with the required talent.  “I want to be a trial advocate” is a necessary, but not sufficient element for advocacy expertise. The need for talent is certain, the results of its absence equally so.

Tomorrow’s transactional lawyers who are today’s law students need an appreciation of the following advocacy skills:

  • ·         the requirements of a comprehensive case analysis, including the legal elements of the claim or charge, the burden and level of proof, apposite particulars of the claim or charge, the strengths and limitations of the available evidence as assessed by each and all of: the substantive legal requirements, evidence law; credibility of the messengers; and, the likely atmospherics at a trial;

  • ·         capacity to assess risk and hence to negotiate civil settlements or plea bargaining, and to be effective at sentencing hearings;

  • ·         communication effectiveness with the mix of audiences (including lay or judicial fact finder, client, witnesses, opponent, media) not only in opening and closing but also in questioning;

  • ·         Dramatic content in direct; and,

  • ·         Successful indoctrination of the decision makers during cross-examination.

Q: What are the teaching and learning methods to achieve those appreciation skills?

Us: We must practise what we preach: clear, as short as possible, full of interest, and memorable. So take a short fact scenario and an everyday law issue and work with that scenario and those legal issues to explain to students, demonstrate to students, have some students attempt, constructively critique those attempts and finally show them what talent and experience can do with that same material.

Because many classes do not have access to good advocacy teachers we must share our knowledge and ours skills beyond the borders of our campus. Just as textbooks made the task of ‘face to face’ teaching easier so You Tube, Itunes and  emerging technology allows us to ensure that quality teaching and learning opportunities are readily available to students, anywhere, anytime. We can use such technology to pre-package a step-by-step approach to case analysis, direct and cross, and submissions.

Some such material is already freely available: see, for example, the Stetson ARC, and also the You Tube materials of Wes Porter, Charlie Rose, and Hugh Selby.

But don’t limit the experience to the classroom.  Equip the students with checklists that reflect their learning and send them out to observe real court cases in your community.  Make them a part of that informed voice that demands better quality advocates and gives life to the notion that our adversarial system is a truly accountable system.

Q:  When, in their law program journey, should law students have this experience?

Us: Surely this is an essential component of the introduction to legal studies, that time when they are introduced to the why and how of legal research, legal writing, the doctrine of precedent, statutory interpretation etc.

But that week or so in an early one semester course should not be the be all and end all.  Just as some brave academic teachers offer moots, so too should there be opportunities, for those with a passion for advocacy, to develop trial skills in substantive subjects such as torts, contract, civil rights, criminal law.  ‘Got you’, think the purists, ‘these students haven’t studied evidence or procedure and therefore they can’t develop any trial skills’.  Wrong.  Giving students the chance to fashion questions that lay and build upon a foundation is a good grounding for the later study of rules of relevance and admissibility in the evidence course.

Q:  What, then, is the future of trial and appellate advocacy programs?

Us: Practice and procedure and evidence courses do not belong in the ‘required’ subjects bundle of a law program.  For the majority of practising lawyers these subjects are pointless. These subjects belong in a litigation stream where they can be tethered to intensive advocacy teaching and learning, covering the conceptual, drafting, questioning and argument skills that the trial and appellate lawyer needs. Thus trial advocacy and appellate advocacy programs become part of rounded preparation for an advocacy career.

There should be other streams which reflect the realities of the present and short term future legal market. Those streams should reflect ‘evidence based’ assessments of what lawyers do in the 21st century, not what most lawyers allegedly did in the early 20th.  A profound change in the thinking about the  ‘needs of a law curriculum’ is well overdue.

That is not to say that a study of proof is not necessary for any lawyer.  As an ‘evidence based’ profession we all need an understanding of how to scope the legal and factual elements of a problem, how to decide what is relevant, and how to approach what significance or weight to give the facts we have.  That, however, is not the same as arguing about hearsay exceptions and matters of credit within evidentiary concepts developed for trials (which are, after all, an end game that most people wish to avoid). A new course that combines aspects of logic, evidence, and statistical method is what is needed.  That is a task for another day.

Today’s task, as advocacy teachers, is to follow the President.

Hugh Selby © May 2013.

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