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Thursday, May 28, 2015

Turning the Tables: Advocacy Students Reflect on Serving as Witnesses and Jurors

The last assignment of every semester in my basic trial advocacy course is a self-analysis memorandum in which the students analyze their performances in the final jury trial of the semester and reflect on their growth throughout the semester. I always enjoy reading these assignments. For my purposes, they are superior to the course evaluation survey instrument the law school uses. When I read what the students have to say about their own personal experiences during the semester, I learn how well they understood the pedagogical objectives of the course, what lessons they learned as advocates, and how they plan to continue improving throughout their careers.

For several years, I've assigned my students to serve as witnesses in each other's final trials, and I have required them to fill out a section in the self-analysis memorandum on their experience as witnesses. Many students have commented on the resentment they felt towards advocates who bullied them, the frustration they felt on the receiving end of a poorly phrased question, their nervousness because they didn't want to let their attorney down, and so forth. As a result of this, they've gained invaluable empathy for their future trial witnesses. 

This year, I tried something new. Instead of assigning the students to serve as witnesses in each other's final trials, I made the advocates responsible for finding their own witnesses, and I assigned the students to serve as jurors for their classmates' trials. In order to make this work, I used two case files for the final trials, so students would not serve as jurors in cases about which they already had extensive knowledge.

Serving as jurors seemed to be even more valuable for the students than serving as witnesses. Without the pressure of trying to remember and play a role, they could watch the trials as disinterested observers who, nonetheless, had an important role to play in the proceedings. Because they knew nothing about the cases, they had to rely solely on what the advocates presented in order to figure out the story and make sound decisions. Many of them commented about how different the trial experience is for the jurors than for the advocates. Their thoughts and insights included frustration with choices attorneys made about what information to introduce, emphasize, or ignore; admiration for attorneys who were well-prepared and who treated witnesses, the judge, and opposing counsel with respect; surprise at the impact on a jury of objections and responses; the importance of cohesive stories, compelling themes, and comprehensive case theories; and above all, how closely the jurors scrutinized everything the attorneys did and said. They developed empathy for their future jurors.

We also brought jurors in who weren't part of the class at all, many of them regular community members. My colleague Tom Margolis, who teaches one of my trial advocacy lab sections, developed an evaluation questionnaire for all of the jurors--whether class members or lay jurors--to help guide post-trial discussions and critiques about the effectiveness of the advocates. This was a useful exercise for the advocates, who in most cases had no idea how the jury perceived their efforts, for good or ill.

In his incisive book review of Joseph Anderson's book Effective Courtroom Advocacy, Hugh Selby wrote about the way we treat jurors:

While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests.  The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.

Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery.  Anderson cites the 1993  National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done;  about 15 % when the prosecution/plaintiff rests;  a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions;  with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.

I hope my student advocates remember the lessons they learned from serving as jurors and from talking to jurors about their own trial performances. After graduation from law school, this knowledge is hard to come by. Most of us will never have the opportunity to serve as a juror. After law school and a few years of practice, many lawyers have long since forgotten what it felt like to consider something from the standpoint of a regular human being without an invested interest in the case at hand. A few years ago, I blogged about and linked to a fantastic article in the Illinois Bar Journal, written by an attorney who actually served on a jury (in Illinois, attorneys and judges are eligible to serve on juries and sometimes actually end up serving). I recommend not only that you read the article, but that you assign it to your students. 

Wouldn't it be a wonderful thing if we could use experience and empathy to help avoid jurors "being driven to despair by advocates and trial judges who were oblivious to juror interests"? 

--Chris Behan

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