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Thursday, March 27, 2014

Why Are Lawyers So Dramatic? Musings on a Windy March Morning

A few months ago, my university selected me for inclusion in our Chancellor's annual report on faculty activities. It's a glossy marketing magazine intended to highlight the exciting and innovative things being done throughout the world by our faculty.  I was selected because I had just finished testifying before a Department of Defense panel on the problem of sexual assault in the military.

My write-up in the annual report, however, had almost nothing to do with my testimony before the DoD panel. Instead, it focused on my work as an advocacy teacher. A university photographer came and photographed me during a trial team practice session. Superimposed over the photograph is the language: You're an expert in military law. You've advised the Department of Defense on military law and taught criminal law in the JAG School. How do you prepare your students for life and death moments in the courtroom?

 As a brief aside, my associate dean pointed out that my photo-spread is actually the centerfold of the magazine. This is a position I never thought I'd occupy in any magazine format. If you know me (bald guy with red-and-white striped tie), I'll bet you never thought I'd be a centerfold either. Sometimes our lives take unexpected turns.

How did it happen? How did we switch from DoD expert consultant to trial teacher? The media representative who interviewed me for the article did not seem that excited about my work with DoD. I testified about the role of commanders in the military justice system, and I'll admit you have to be pretty invested in the military justice system to find that topic interesting, let alone excited. Years after I published an influential article on the subject, my wife, who is also a lawyer and law professor, still has not been able to bring herself to read it all the way through.

As the interview progressed, she asked what classes I taught. When I told her I was the director of our trial advocacy program, she suddenly became enthusiastic. After that, all we talked about was trials, trial lawyers, and our trial advocacy program.

She asked me a question I found intriguing: why do lawyers think they have to be so dramatic? She illustrated with a story about her recent jury service in the Chicago area. She was selected for jury duty, made it through voir dire, and was sworn in. The jury heard opening statements, after which the case was apparently dismissed or settled, and the jurors were released before a single witness testified.

She said she found the opening statements of both lawyers to be off-putting. They acted as if they were putting on a dramatic performance rather than speaking to the jurors as human beings. She wondered why the lawyers thought this was an effective communication technique. She didn't think they had said anything that connected with anyone on the jury.

I told her I thought lawyers who treated the jury that way had probably lost touch with the human condition and that they viewed jurors as objects of manipulation rather than human beings worthy of human attention and communication techniques. We had a nice discussion about the challenges posed by teaching lawyers to become human beings again.

This is an important topic to me. Helping my law students to connect to jurors as they would with their friends and family--rather than trying to manipulate jurors by employing advocacy parlor tricks--is one of my central goals as an advocacy teacher.

A little over ten years ago, I had the privilege of taking an advocacy course from Joshua Karton. Josh isn't a lawyer. He teaches lawyers how to become human again and to treat witnesses and jurors with the respect they deserve as fellow human beings. His course changed my life as a person, advocate, and advocacy teacher. I've been privileged to teach with Josh a few times, and each time, I learn more and return home a better teacher than I was before.

I'd like to pose my interviewer's question to you: why are lawyers so dramatic? What do you do in your teaching to help your students overcome the idea that advocacy is simply performing the right magic trick at the right time to achieve a guaranteed effect? Who has influenced you in your efforts to be a better teacher?

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