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Friday, April 25, 2014

Trip Report: Advocacy Training in Botswana

I recently returned home from helping to teach an advocacy training course in Gaborone, Botswana. The course was sponsored by Justice Advocacy Africa and the Law Society of Botswana (LSB). JAA is a U.S.-based nonprofit organization dedicated to promoting "confidence in and respect for legal institutions in African countries through providing professional advocacy training for African lawyers." The LSB regulates practicing lawyers in Botswana, promotes pro-bono service, and engages in activities to promote greater access to justice in Botswana.

Faculty Members in the Botswana course at the end of the course. The faculty were presented with traditional bridal blankets, a gift from the Law Society of Botswana. Male faculty were instructed in the proper procedures for placing the blanket on their spouses.

This was my first experience teaching overseas in a non-U.S. jurisdiction. Since joining the faculty at Southern Illinois University School of Law, I've taught in a few U.S-based advocacy courses that included faculty members from Australia (Hugh Selby and Graeme Blanke) and Scotland (Gillian "Queen of Scots" Moore). In those courses, I gained tremendous respect and admiration for my colleagues from overseas. I learned the important lesson that we do not have a monopoly on gifted advocacy teachers here in the United States. Still, these experiences occurred in the context of U.S. courses training American lawyers to practice in American courts. 

It was a pleasure to participate in this course, and it was also a life-changing learning experience for me. In no particular order, here are some of my observations about my trip to Botswana.

Course Administration

The quality of the course administration was superb. Pepsi Thuto is the Botswanan version of NITA's inimitable Mark Caldwell: efficient, organized, diplomatic, kind, and generous. Working with her was a fantastic experience. And like Mark, she is a superb teacher in her own right. She bailed me out of a tight spot during a communications exercise I was conducting towards the end of the course. I was doing a poor job of communicating to a student what I wanted done (the irony of this occurring during a communications exercise was not lost on me, either then or now). Pepsi stepped up, quietly made a suggestion that perfectly solved the problem, and then faded back into the crowd. The student felt successful, I felt relieved, and the course achieved its objectives.

I also have to say--Pepsi did a great job of organizing the evening dinners and faculty get-togethers that make advocacy teaching such a rewarding experience for those who do it. My father and son traveled to Africa with me, and I think the three of us will always treasure the evening we spent with the faculty at the Gaborone Yacht Club.

Faculty

We had an international faculty at the course, the majority of whom were practicing attorneys in Africa. Botswana led the way with seven faculty members. There were also two faculty members from Kenya, one from Uganda, and two (myself included) from the United States. The course administrator, Pepsi Thuto, is a prominent attorney in Gaborone. The role of the American faculty was to provide support and help the course administrator fulfill her objectives in any way she deemed useful. This arrangement represents a deliberate policy choice by JAA to help create and nurture a culture of advocacy teaching in which African attorneys play the key teaching and administrative roles. From my experience in Botswana, the arrangement works very well.

My fellow faculty members were amazing. Other than location, this course looked and felt very much like a NITA or NITA-style course here in the United States. This included the quality of the instruction. I've noticed that course managers here in the States seem to have a knack for gathering a gifted and eclectic group of faculty members who complement each other and present a variety of different approaches to students. JAA is no different in its selection of faculty for its Africa course. The Botswana faculty came from a variety of locations, represented a wide spectrum of practice experience (everything from family law to business litigation and criminal law to international human rights law), and were diverse in their approaches to teaching advocacy to others.

Every faculty member was assigned lectures and demonstrations, and just as I have experienced in every advocacy course I've ever taught, I saw and heard many things that I intend to integrate into my own courses. In fact, I would very much like to find a way to bring many of these faculty members to the United States to help teach courses here.

Universal Advocacy Principles with Local Adaptation

I confess that I traveled to Botswana knowing relatively little about either its legal system or its educational system for courtroom advocates. Prior to traveling there, I did some reading about the country's history and culture in travel guides and online. I watched a season of The No. 1 Ladies' Detective Agency, an HBO series based on Alexander McCall Smith's books about the adventures of Gaborone's first female detective. Neither of these resources was ideal for learning about the practice of law in Botswana.  I did request a reading list about Botswana's legal system from a colleague at the University of Botswana. He promised to send it, but I learned when I arrived that he had decided not to when he realized that most of the books he would have put on it were not available outside of Botswana.

Most of my knowledge about Botswana's legal system came on the flight over after I discovered that the man sitting across the aisle from me was a South African barrister who had actually tried cases in Botswana. He was quite helpful, and he corrected some erroneous assumptions I had made--most notably, that as a former British protectorate, Botswana had trials by jury. This information was helpful to me when the course started, but even more helpful were the interactions I had with the faculty that JAA and LSB had brought to Gaborone for the course.

I believe there are universal principles of effective advocacy that apply in any system, including (but not limited to) preparation, organization, rigorous case analysis, single-fact questions, clear speech and diction, simple ideas, respect for the fact-finder, deference to the court, good storytelling, logical theories, and compelling moral themes. The universality of these principles suggests that a competent advocacy teacher can succeed in helping students become better advocates in a variety of different systems. This does not mean that advocacy teaching is "plug and play": the teacher who works with students in another system must adapt her instruction to local procedures and give deference to practices that may differ from the prevailing norms in the home jurisdiction.

For example, during direct and cross examinations, it seemed that many of the students were paying excessive attention to their notes. Some of them, in fact, were taking notes during their examinations. I felt that many of the advocates were paying more attention to their notes than to their witnesses. Upon inquiry, I learned that it is customary in Botswana courts for the advocates and the judges to take notes during trials. This is because it takes a long time to get a record of trial--oftentimes, a record of trial will not be produced until after post-trial submissions to the judge or judicial decisions are due. Thus, everyone wants to have good notes to support these necessary and required tasks. I asked why a second-chair attorney or paralegal couldn't take the notes and learned that it is a rare luxury to have more than one attorney for each side in the courtroom, let alone support staff. These practices are different than the prevailing practice in the States. An advocate in Botswana must be sure to record enough information from the witness while during the examination, not only to successfully conduct the examination, but also to make a sufficient record for post-trial matters. Furthermore, the advocate must be aware of when the judge is finished taking notes and is ready for the next question. Nonetheless, there was a universal advocacy principle still to be taught about paying attention to witnesses and adjusting a planned examination based on witness answers. I consulted with my fellow faculty members about how to teach the principle without violating local practice. What we settled on was a recommendation to create a good examination outline and take notes "by exception," where a witness varied from the expected testimony. Since the judge and opposing counsel would also be taking notes, we emphasized the importance of paying full attention to the witness before starting to take notes. This seemed to match best practices in the area, and for me, was an example of the type of collaborative teaching that must take place when one teaches in a foreign jurisdiction.

Demonstrations

The demonstrations were a little different than in the States, because none of the African faculty practice in front of juries. Addresses began with, "Your Worship," or "My Lord," or "My Lady," rather than "Ladies and Gentlemen of the Jury." I am a stickler for courtroom formalities--I don't subscribe to the school of thought that the advocate should take charge of the judge's courtroom--and I found great comfort and joy in the greater emphasis on formality. We could use a good dose of that here in the States, in my opinion. I always do a slow burn when I read advocacy books in which the author recommends treating the judge as an enemy of the truth who needs to be put in his or her place by the advocate in the presence of the jury.

What I found fascinating about the demonstrations was the persuasive art involved in addressing a judicial fact-finder rather than a lay jury. The line between persuading a jury and to a judge is much more blurred than many of us would like to think. Nonetheless, there are some important differences, including the ability to argue precedent and request a particular interpretation of the law in a submission (closing argument) to a judge. I think we would do well to create some training programs in the States that focus on judicial persuasion at the trial level. I know some excellent faculty for such a course!

I'd also like to note that in many respects, these advocates are pioneers in a new type of persuasion for their jurisdictions. As I learned in our discussions, it is still relatively uncommon for African advocates to make opening statements; it happens less than 50% of the time in Botswana. A Botswana High Court judge attended many of our sessions. She admonished the students to give opening statements whenever they could, and she suggested that most judges preferred to hear an opening statement once they were exposed to the idea of them.

A Different Critiquing Style

I enjoyed the style of critiquing employed in JAA courses. The critiques are based on the standard 4-step NITA methodology (headline, playback, prescription, rationale), but, in deference to African teaching and learning styles, modified to be more suggestive than directive in nature. It adds a step to the process at the beginning of the critique, where the instructor identifies something specific that the student should keep doing. It replaces "prescription" with "suggestion." I liked this method of critiquing and intend to use the "what is working" step in my law student critiques. Like many other advocacy instructors, I've had students approach me after a session and ask if they did anything right. This step eliminates that problem. It also serves to reinforce for the other students good things that are happening in the class.

At the end of the course, we all sat in a large circle, and the students critiqued the course and the faculty. This was a unique experience for me; every time I've received critiques from students in the past, it has been in the form of anonymous comments on a piece of paper. Pepsi told us they end every course like this. I was a little nervous about this type of critique at first, but it ended up being one of the highlights of the course.

Students

The students were wonderful to work with. This course included lawyers, but also non-lawyer police officers who prosecute cases in Magistrate's Court. The first day of the course, the police officers wore their uniforms, so there was a clear separation in the room between lawyers and non-lawyers. Pepsi asked the police to wear appropriate courtroom attire for the remainder of the course, and they complied. For the rest of the course--at least according to my observation--both groups mixed well together and worked hard. My heart went out to the police prosecutors. Many of them told us they had been prosecuting cases for years, never having received training in how to ask a proper question, how to make a submission to a judge, or how to give an opening statement. They worked hard to master these skills, and in the final critique session, many of them commented on how this course would help them change their practice for the better.

Most of the lawyers attending the course were young, about the age of our law students in the States. Botswana, like most common law countries, uses the LLB degree for law students. The LLB in Botswana is a 5-year degree, followed by a year of pupilage under the supervision of a licensed attorney. In other countries, the LLB is a 4-year degree, followed by a pre-bar course. Many of the Botswana lawyers were in their pupilage year, although a few had been practicing for several years. Even though none of them had taken a trial advocacy course as part of their studies (such courses are not offered as part of the LLB), they were quick learners who understood and applied the principles we were teaching them.

Regardless of their background, these students were fun to work with. They were fearless learners who easily set aside their egos to try new things. With all the hard work during the week, there was also a lot of laughter in the plenary sessions and also in the performance rooms. For all of us, a highlight at the end of each day was the Cell Phone Trial. Pepsi had a no cell-phone rule for the course, but this one had teeth. She appointed a sheriff, a faculty member named Moagi Maloi, to roam the classrooms and seize cellphones that were being used in violation of the rule. The rule was broadly interpreted so that even an unanswered incoming call would lead to seizure of the phone. A the end of the day, the sheriff would become the judge and call the offenders forward to plead their cause and attempt to regain the cellphone. Anyone from the audience could step forward as a defense attorney, special prosecutor, consultant or witness. It was an innovative, creative, and fun way to deal with the problem of cell phones in the classroom.

The final event of the course was a party at the Law Society of Botswana. At this party, several students encouraged me to dance with the group. I demurred, claiming that I was uncomfortable dancing and would single-handedly set dancing back several hundred years. Their reply? "You made us get up and do things we weren't comfortable doing. You should do the same." In the end, I danced. I don't think I was very good, but their arguments were persuasive.

Me with a group of students and course administrator Pepsi Thuto at the end-of-course party. Pepsi is on the bottom right of the photograph.

Support and Hospitality

The support from the local bar was outstanding. The JAA and LSB have been offering this course for several years, to the point where public agencies fund and expect their lawyers to attend. The Botswana judicairy also supported the course. Nearly every day of the course, a judge from the High Court attended the plenary sessions--and even some of the performance groups--and offered comments and advice for the students about courtroom advocacy. This was a nice touch. We're often blessed in stateside advocacy courses to have sitting or retired judges on the faculty, and their presence--at least in my view--adds an authoritative stamp to the work the faculty is trying to accomplish.

I must also add that the Law Society of Botswana, both collectively as an institution and individually in its membership, knows how to put on unforgettable social events. We were guests at the grand opening of the LSB's outdoor social pavilion, a party that started around 5 pm and finally ended (or so I was told, because I left at midnight) around 1:30 the next morning. I don't recall a time when I've been to an event at which so many lawyers had so much fun for so long.

One of the many tables at the LSB headquarters, site of one of the most epic legal parties in recent history. The party began as a traditional bar association gathering with people standing around holding drinks and engaging in small talk. Then it turned into a barbecue with LSB staff grilling mountains of beef, sausages, and chicken--all served with traditional Botswana side dishes. At some point between dinner and 10 pm, it morphed into a house party. 

As I mentioned earlier, I brought my father with me, who has traveled all over the world but never in Africa, and my 18-year-old son Joe, whose only experience in another country was a day trip to Canada when he was three. Before we returned home from this trip, Joe had stamps in his passport from South Africa, Botswana, Zimbabwe, and Zambia, and he had also been physically present in Senegal (refueling stop) and Namibia (on a boat ride). He went on safaris in Botswana and South Africa, and he bungee-jumped from a 350-foot bridge at Victoria Falls. Because I was teaching, I didn't get to travel as much as my father and son did, but I did get to go on a short safari with them at the Madikwe Game Reserve in South Africa at the end of the course.

My father, Wayne Behan, son Joe, and me at Madikwe Game Reserve in South Africa, just over the border from Botswana.
As fun as those experiences were, it was even better to meet and mingle with our new friends from Botswana. If you like hospitable people (and excellent beef), Botswana is the place to go. As an example, Pepsi, the course administrator, arranged for her 22-year-old son to take Joe for an afternoon outing at the Gaborone Yacht Club. Joe met and befriended young people from Botswana, South Africa, and Sweden. He had a memorable day and evening with his new friends. Later that evening, the faculty ate dinner at the Yacht Club and spent an enjoyable time there.

After dinner at the Gaborone Yacht Club.

John Kigundu, the chair of the Department of Law at the University of Botswana, met my father and insisted that I bring him with me when John took me on a tour of the campus. I greatly appreciated the hospitality shown to my father and my son by everyone we met; they were included in everything and treated with kindness and affection.

Moving Forward

If it were possible and I had the financial means for it, I would volunteer for every JAA course in Africa. I had a wonderful time in Botswana, made new friends, and collected some wonderful memories. Going to Africa several times a year is not financially feasible for me (I note that attorneys who travel to Africa with the JAA pay their own airfare as well as a participation fee that helps underwrite the costs of the course), but I do hope I can become at least a semi-regular participant.

In the meantime, I'm putting my mind to work trying to come up with some funding sources to bring some of my new-found colleagues to help teach courses in the United States. One possibility that may pan out in the next academic year is a Comparative Common Law Advocacy course that I plan to teach in conjunction with Jack Burke of the City University of Hong Kong and Graeme Blanke at Australian National University. Using distance learning technology, we plan to teach a course on comparative advocacy and procedure. The course will culminate with a visit to one of the jurisdictions to try a case using that country's rules of evidence and procedure. The first year of the course, we've decided to hold the trials in Illinois. John Chigiti, who taught in the Botswana course and is a faculty member at the Kenya School of Law, is interested in participating in the course with a group of his students. It will be a challenge to put together the funding and match schedules to bring these students together, but I think it will be a worthwhile experience.

There are great advocates everywhere in the world, and I think we ought to draw from the best of them to teach our courses, wherever we are.


Something you CAN"T see at a state-side advocacy training course!


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    1. Thank you very for the insightful comments regarding the Advocacy Training in Botswana. I was just wondering if you guys had any plans to replicate the same initiative here in Zimbabwe.Trial Advocacy is one critical course that our legal profession is lacking at the present time and his obviously is impacting negatively on our justice system. As the Secretary for the Council for Legal Education in Zimbabwe, I have been mooting coming up with an Advocacy Training Programme for the local lawyers and use judges s part of the resource persons, but again one of my serious limitations is that I have never been in legal practising nor do I have a teaching background. I would like to therefore engage your Institution to kindly assist in that regard ad perhaps organise one joint training programme which we can replicate over the years. I would be happy to hear from you on this matter. But I will send a formal request via email to your institution. Kind regards, Innocent Mawire (Zimbabwe)

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    2. Please do email me. cbehan@siu.edu. I would love to talk to you about this.

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