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Advocacy Agony Aunt

An advocacy advice column. Are you having an advocacy or advocacy teaching problem and would like some help? Leave your question in the comment section below (anonymous or pseudonymous comments are just fine), or e-mail hugh.selby@anu.edu.au. We'll post answers and invite learned commentary on the issue from our readers.


  1. Dear Advocacy Agony Aunt,

    I need some help and advice--and quickly! I'm teaching a summer trial advocacy class that starts in mid-June. One of the students registered for the class is hearing-impaired. The student can read lips and speak clearly.

    Normally the student sits in the front row of classes to assist with reading lips and understanding what's going on. At one time, the school used an internet-based live transcription service to produce instant transcripts of class for the student, but I understand this practice ended at the student's request; the transcripts were no more helpful than the student's own note-taking abilities.

    How can I best help this student learn advocacy skills? Having interacted with the student before, I think skills such as opening statements and closing arguments will present no more difficulties than they would for any other student. But I am concerned about dealing with witnesses on direct and cross examination.

    If anyone has dealt with a similar issue before, or has some good ideas, please share! I want this student--and the others in the class--to have a good learning experience.


  2. Apparently your student needs only an uninterrupted view, good lighting, and not too much background noise to be able to receive what others are saying.

    From the history this is a student with an “I’ll do it” approach to life.

    So the task is no more than ensuring that the student has the finesse to engagingly ensure that when questioning witnesses the ambient noise, lighting and sight lines are all OK.

    How’s that done? By weaving into the personal introduction a message along the lines of, “Now so that I can clearly take up what you’re saying I’m going to have to be here and/or you’re going to have to be there”.

    Of course your student, understanding that the decider of fact is the most important audience, will need on direct to find a position that allows both student and fact finder to see the face of the witness.

    During cross if the witness chooses to look directly at the student and away from the decision maker, well that’s the witness’ funeral.

    By the way, if the student takes part in competitions then ‘early warning’ to the organisers and judges will do no harm. That’s also good practice for professional life when letting the court staff know in advance that there’s a special need will go a long way to smoothing the path.

  3. Trial Advocacy Professors Tell Me that Using Strategy is “Unfair”
    Medieval trial by combat (where the litigants or their representatives dueled physically, allowing God to grant victory to whoever had the just case) differs from modern trial by court because rather than relying upon combat prowess it calls upon jurors to weigh the evidence. Evidence, however, may be (and often is) unclear and subject to multiple interpretations.

    Advocacy leverages this in a variety of ways. For example, we develop a theme and theory in order to provide a favorable context to the evidence. We use primacy and recency, preempt our opponents arguments and counter-arguments, shift emphasis to favorable facts and away from unfavorable ones, extract from witnesses information that advances our case, and use techniques of persuasion to influence the way jurors interpret facts.

    If we possess but do not use these skills, we may be in breach of our ethical duty to our client. If we fail to advocate, persuade, and provide a favorable context—even when facing an attorney of far less aptitude; even when our client is clearly liable or guilty—we may be committing malpractice.

    Of course if only one attorney can bring this skill set to bear, he can tip the scales without opposition. So, while giving some weight to the facts, we still have the trial by combat issue of having outcomes determined by skill rather than objective concepts of justice.

    But techniques of advocacy are only the basic tools of the trade. We can also bring to bear skills from the field of Strategy, leveraging the OODA Loop (capitalizing on information the other party does not possess due to privilege or work product, shaping the context in which they receive and assess information, channeling the decisions they make, or taking actions that pre-empt or disrupt opponent's actions), using economic game theory to leverage and shape situations, and drawing upon tools from other strategic schools of thought.

    Ironically, when I clarified how these strategic techniques apply to litigation (in the book Strategy, Planning & Litigating to Win) two advocacy professors opined that using Strategy was “unfair” [Ironic because advocacy teachers make their living by instilling techniques that shape trial outcomes, techniques without which Strategy would gain no purchase in a trial—how is confounding ones opponent through strategy any less “fair” than creating a persuasive theme and theory that a less-well-educated opposing counsel lacks the tools to overcome? I welcome answers to this tangential question, as well.]

    The "Paradox of Skill" states that greater levels of skill among the participants in a competition increases the degree to which “luck” affects the outcome. In the attorneys' case, "luck" may be having the facts and law on your side--in short, the more equally skilled the attorneys, the more likely the trial has a “just” outcome. So, we can either require all attorneys remain equally ignorant of advocacy and strategy, or we can try to make all counsel competent in advocacy and strategy and ensure they follow the rules of ethics (rules which allow persuasion, create disparity in the information available (privilege and work product—work product that includes the attorneys theme and theory).

    So should we stop teaching advocacy? Should the Bar require trial attorneys be proficient in advocacy and strategy before entering the well? Should we say that some currently ethical techniques are unethical? How do we deal with the unfairness of competent advocacy?

  4. Dear Advocacy Agony Aunt,

    I have been asked to help plan an intensive, week-long legal interviewing and counseling course for 120 students in the winter term of 2014. I was not able to come to EATS this year, but I write to ask for ideas about structure for an intensive interviewing course, and how I would handle that 120 students (small groups led by a group of instructors?) How do I fit in everything in one week? If anyone has an intensive interviewing and counseling syllabus that they would like to share, I would be greatly appreciated. -- L. Davis (lsdavis@samford.edu)