Teaching Trial Advocacy in Africa: The Magic of Mombasa

As I write this, I am sitting in a room at the Royal Court Hotel in Mombasa, Kenya, unwinding from the 2015 Justice Advocacy Africa/Mombasa Law Society Trial Advocacy Training. It was a busy week, but a wonderful one. As always when I come to the end of a short, intensive trial advocacy course, I find myself experiencing a combination of physical exhaustion from the labors and revelry of the week, and mental rejuvenation from the chance to work with a group of gifted colleagues and students.

Students and faculty of the 2015 Trial Advocacy Training Course, jointly sponsored by Justice Advocacy Africa and the Mombasa Law Society. This picture was taken in the moot court room of the University of Nairobi School of Law, Mombasa campus.

Today began with our final trials in the classrooms and moot court room of the University of Nairobi School of Law-Mombasa Campus. Using a case file they had received just five days earlier, the students tried a matrimonial property case in which the petitioner sought to have the court declare that she was married under tribal customary law to the respondent and was entitled to a share of the farm from which he was trying to evict her. The purpose of the eviction was so he could live there undisturbed with his church-wed wife, a woman twenty years his junior. The case featured a plethora of fun facts, word-play (for instance, the trophy wife's last name was Gachungwa, local slang closely corresponding to "sweet young thing"), and interesting opportunities for creative advocacy.

George Mwaura cross-examines Kelvin Asige during the final trial of the course.

The day ended with a closing social on the Indian Ocean beach with the faculty and students. We sat on a terrace at an outdoor restaurant, laughing and talking as a gentle breeze kept us cool and comfortable. As a group, we cavorted barefoot through the sand, dipped our feet in the ocean, and posed for photographs as the sun set behind us. We ate thin-crust Italian pizza cooked on a wood-fired grill and finished it off with ice cream made fresh on the premises. When it was time to leave, we all hugged each other and promised to send pictures and stay in touch. It would have been difficult to say goodbye, were I not planning to come back and work with them again.

A group engaged in conversation at the final social.

This was my first visit to Mombasa, a city of about 1.2 million on the southeastern coast of Kenya. Much of the city is actually located on an island not far off the mainland. Because of its location on the Indian Ocean, the city is a melting pot of different cultures, ethnic groups, and religions. Within just a few blocks of the university, there were Christian churches, mosques, and Hindu temples. Walking along the streets, I saw a cultural smorgasbord of people: Westernized teenagers who would not have looked out of place in any American city, men dressed in Muslim robes and skullcaps, women wearing hijab scarves walking alongside women wearing business suits and heels, men in colorful African shirts and men with collared shirts and ties. Street vendors and restaurants sold food of many ethnic varieties, with tantalizing odors wafting from outdoor grills or kitchen doors. Just outside our hotel, for example, is the Kulthum Barbecue, where cooks labor all day and well into the night cooking savory meats on charcoal grills.

Especially in the evenings, I found the city enchanting, like something out of The Thousand and One Nights or a book of African folktales. Or both. And indeed, at dinner nearly every night, usually right after the sun had slipped beneath the horizon, our Kenyan companions regaled us with stories of magic cats, spells against infidelity, corpses refusing to be buried, mysterious midnight runners, and so on. Our hosts were marvelous storytellers. I have not met their equals.

The stern of a dhow (Indian Ocean fishing and trading vessel). 

My faculty colleagues were marvelous. I had worked with one faculty member before, John Chigiti, a prominent human rights attorney in Nairobi, but this was my first time (and hopefully not the last) working with a new group of colleagues. Most of our faculty were Kenyans who had received faculty training through Justice Advocacy Africa and the Kenya School of Law in Nairobi: Samuel Akhwale, Christine Kipsang, Rose Mbanya, Njoki Mboce, Benjamin Njoroge, and Lilian Oluoch-Wambi. Without exception they were superb advocacy trainers: dedicated, prepared, caring, and creative. There were also three Americans other than myself: Susan Fahringer and Harry Schneider, Jr., both partners at Perkins-Coie in Seattle, and Jeff Tilden, a partner at Gordon Tilden Thomas & Cordell in Seattle. Benjamin Njoroge and Harry Schneider worked together to manage the course. Benjamin was a paragon of efficiency who not only kept the trains running on time, but got them all to their destinations early.

Liliane, Christine, John, and Benjamin, faculty members from Kenya.

Sam Akhwane demonstrating a summation (closing argument).

Christine and Rose co-teaching a plenary session.

Susan, Chris, and Njoki.

Harry, Jeff, and Eric Nyongesa Wafula. Eric, the president of the Mombasa Law Society, was a gracious host throughout the course.

The students were wonderful. The Mombasa Law Society opened the course to law students, new attorneys, and experienced advocates. I'm not sure the various combinations of age and experience would have worked for an intensive advocacy course in most places, but here the differences presented no barriers. Several of the younger participants told us they had felt trepidation about being treated dismissively by their seniors as having nothing to contribute, but had been pleasantly surprised by the inclusiveness, cooperation, and respect they experienced. Some of the more senior attorneys said they had wondered what the course might have to offer them after several years in practice, but had felt their skills honed and sharpened as they tried the suggestions given to them by faculty members. Some faculty members were quite a bit younger than the students. One of our students, for instance, was a law professor at UON-Mombasa and had taught one of the course faculty members in law school a few years earlier.

This culture of mutual respect and willingness to try new things was no accident. It was deliberately cultivated by the course organizers. During our faculty meetings, I was impressed by the observations our Kenyan colleagues made about how to critique senior students without embarrassing them and how to critique less experienced students without discouraging them.

JAA has adopted a critiquing methodology that begins with the identification of something the advocate did well. Only then does the instructor begin discussing areas for improvement. This method runs counter to the way most of us have been trained, but it works. I've taught in two JAA courses (Botswana and Mombasa) and have never experienced or seen student "pushback" in response to critiques. In American trial advocacy courses, such a thing is practically unheard of. While it may be true that African students are more deferential to teachers than their American counterparts, I think the culture of respect from teacher to student is worthy of emulation. When I think of my own advocacy teaching disasters throughout the years, and there have been many, most could have been avoided had I shown more deference and respect to students.

As always when I teach, I learned a few things that I want to take home and incorporate into my own classes. Here are some of them.

·       Have More Fun. Every day, as a group, we did something fun in class. Christine Kipsang, a Mombasa attorney on our faculty, was particularly good at coming up with playful warm-up exercises for everyone at the beginning of plenary sessions. I cannot possibly duplicate the success of her immortal song-and-dance number with an imaginary ball: "I have a ball. I put it here (pantomiming putting the ball on various locations on the body such as the head, shoulders, hips, stomach, and back). I shake it. I shake it." It took me a couple of times to realize the "it" was not the ball. Jeff Tilden gave all the students plastic rings with battery-powered gems that lit up in various colors. Students wore them all week long. When Benjamin Njoroge handed out graduation certificates to the students, he required each of them to demonstrate a dance move on their way to receive the certificates. The point is that everyone, even adults, likes to have fun while learning. When learning becomes deadly serious, it becomes deadly dull, and less of it occurs.

·       Critique with Compliments. I've already discussed this, but I'll mention it again, because I think it's that important. A compliment on a skill well-performed or a weakness overcome sets the stage for growth much differently than simply identifying a mistake and prescribing a solution. The key is sincerity, though. The compliment has to be sincere, otherwise it is simply an artifice.

·       Include Everyone. In this course, every faculty member kept busy conducting critiques in the classroom, but beyond that, we all had responsibilities to give short lectures or demonstrations in the plenary sessions. Every one of us had a different teaching or advocacy style, and I learned something new from every single presentation. I was then able to refer to my colleagues' plenary session work in the breakout sessions. I first learned this principle from Jim Seckinger in his intensive courses at Notre Dame. Everyone in his courses participates in the plenary sessions, and with the all-star cast of worldwide litigation experts he brings to these courses, you'd better come prepared. Over the years, however, I've taught in a number of courses in which there seemed to be two echelons of faculty: the stars who were called upon to shine in plenary sessions, and the worker bees who toiled with little fanfare in the breakout rooms. My resolution for the coming school year in my trial advocacy course is to involve all of my adjunct faculty members in the plenary lectures throughout the semester. I think the course will be the better for it.

·       The Pantomime Trial Rehearsal. Sam Akhwane introduced one of the best innovations I've seen in a basic trial advocacy course. Realizing that some of our students had never seen a trial before and didn't know in what order to proceed, he improvised a short walk-through that helped everyone understand exactly what to do. He called up the group of students who were participating in the first trial. He placed the petitioner and witnesses on one side of the room and the respondent and witnesses on the other. He announced opening statements and brought the petitioner's counsel forward to pantomime a brief (10 sec) opening statement, followed by the respondent's counsel. He then put witness one in the witness stand and brought the petitioner's counsel forward to pantomime a brief direct examination, followed by the respondent's counsel pantomiming a cross examination. And so on through to the end of the trial. In less than 5 minutes, he had walked a group of students through a trial, effectively demonstrating to them where to go, what to do, and the proper order of things. I thought it was brilliant.

I've been writing for awhile now, and it's getting late, so I will close this blog post by thanking Justice Advocacy Africa, the Mombasa Law Society, the UON-M School of Law, my colleagues on the faculty, and most of all, our wonderful students, for the opportunity to come here and participate in this course.

Sunset over the island of Mombasa,

--Chris Behan