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Tuesday, May 19, 2015


Judge Robert McGahey of Denver submitted the following guest post:

I've subscribed to The New Yorker for years and read it cover-to-cover when I get it. The articles that are directly about the law and the legal process are frequently insightful and thought-provoking, especially those by Jeffrey Toobin.  But every now and then there's an article that's not directly related to the law that has application to advocacy or advocacy teaching.  I'd like to call your attention to two such recent articles.

In the March 9, 2015 issue there's an article titled "Frame of Reference", written by the inimitable John McPhee, one of my favorite authors.  McPhee writes on a myriad of subjects and his economical but stylish writing is always a treat.  This article discuss the fact that different people understand – or don't understand -- what someone is talking  or writing about depending on the listener's  or reader's frame of reference.

Anyone who knows me knows I love to make pop cultural references (and frequently really obscure ones) when I speak or teach. Even so, I have long taught my students to avoid such references in court, since everybody doesn't understand those references in the same way and may not understand them at all.  This was brought home forcefully to me several years ago, when discussing Judgment at Nuremberg with a seminar group.  I referred to the characters played by Spencer Tracy and Burt Lancaster, and was met with many blank stares.  I then realized, to my horror, that most of these young Philistines didn't know who I was talking about. McPhee actually calls out folks like me when he writes:  "Don't assume that everyone on earth has seen every movie that you have seen.  In the archives of ersatz references, that is among the fattest folders."

The advocacy teaching takeaway here is to remind our students to consider the frame of reference of the juries and judges they speak to and the witnesses they question.  Students should focus on references, analogies and comparisons that are truly universal and they should avoid ones that aren't. Such references, analogies and comparisons can make our case story livelier, easier to understand and more accessible, but using incomprehensible or confusing ones can create confusion or hostility that leads to failure.

The second article is one by Malcolm Gladwell titled "The Engineer's Lament," in the May 4, 2015 issue. Gladwell is the best-selling author of books like What the Dog Saw, Outliers, and The Tipping Point, and is a frequent contributor to The New Yorker. I know that everyone isn't a Gladwell fan, although I always enjoy his stuff, even if I don't always agree with him.  This article is an exploration of how people trained as engineers tend to think about and approach problems in a different way than folks not so trained. He quotes this unattributed saying:

 "A pessimist sees the glass as half empty.  The optimist sees the glass as half full.  The engineer sees the glass as twice the size it needs to be." Gladwell's article first got me thinking about how we do this as lawyers.  There's all that hullabaloo about teaching 1L's to "think like lawyers"; remember Professor Kingsfield's remark: "You come in here with a skull full of mush; you leave thinking like a lawyer."[1] It's why we encourage our students to avoid jargon, legalese and too many words of art when operating in a courtroom.  After all, most juries aren't made up of lawyers.

But Gladwell's article struck another chord for me, this one with how we present expert witnesses in courtrooms.  The article's more specific focus is how automotive engineers look at product defects and how that differs from the rest of us: "To the engineer, a car sits somewhere on the gradient of acceptability.  To the public, a car's status is binary: it is either broken or working, flawed or functional."

Think back on a time when you were having trouble getting expert testimony to resonate with a jury, or better, when you had an expert whose testimony had the jury nodding their heads in understanding.  Wasn't the better expert a great teacher, someone who could make complicated matters understandable, frequently by the use of easily understood comparisons or analogies? (Ah! McPhee!) Wasn't the better expert someone who didn't talk like one, someone the jury could relate to, who's testimony the jury could accept as the correct explanation for an what seems at first blush to be an obscure or impenetrable subject?  Shouldn't we teach our students how to work with experts to give that expert's testimony the best chance of being accepted and adopted by the jury -- in other words, how to make that expert's testimony persuasive?

I would urge you to read these two articles and see if you can adapt their ideas into to your teaching. And please share what "un-lawyerly" stuff you use to teach advocacy!

[1] John Houseman as Professor Charles W. Kingsfield, Jr., The Paper Chase, (20th Century Fox, 1973.) The inclusion of an ironic movie reference is absolutely deliberate. 

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