Back in the Saddle Again

Several years ago, when I started this blog along with my good friends Hugh Selby and Charlie Rose, I somewhat contemptuously looked over the landscape of abandoned trial advocacy blogs and resolved that this one would be different. With three of us, I reasoned, there would never be a shortage of material for the blog; in fact, the problem would most likely be having to limit the copious streams of advocacy wisdom that would flow from our computer keyboards. Because we intended the blog to be a community effort, a forum open to everyone in the advocacy teaching community to contribute, we were certain to have a nearly inexhaustible trove of articles and comments. That was the optimistic vision of the blog: a cyberspace version of a perpetual motion writing machine that would practically generate its own content, even as it revolutionized the world of trial advocacy and advocacy teaching.

Wes Porter on the Role of Advocacy Professors in Changing Legal Education

Those of you who attended EATS this past May will remember Wes Porter's excellent presentation as part of the "Creating a 21st Century Law School" panel. Wes has written a blog post for the Institute for the Advancement of the American Legal System.

With his permission, I've posted a link to that blog post here: http://online.iaals.du.edu/2013/07/16/advocacy-professors-can-help-law-schools-achieve-real-change/. It's a thought-provoking and inspirational piece.

Altchiler's Advocacy Abattoir: Making the First Day a Memorable Event

Bob Altchiler is the founder and principal of Altchiler, LLC, and an adjunct faculty member in the trial advocacy program at Pace Law School. In the blog post below, he shares his memorable first-day introduction to trial advocacy. Something tells me students have a great time in Professor Altchiler's Advocacy Abattoir/Trial Advocacy Course.

I tried something new in my advocacy class this past semester. I walked into the courtroom, where my class was waiting for me. Before saying a word, with my class in the jury box, I handed to each of them a bloody body part, or an x-ray of a body part. (see attached samples). 

Then I left.

Why we need to train young Public Defenders and a few thoughts about how

The following post was written by L. Richard Walker, a Public Defender who attended the Advocacy Teaching meeting at Stetson (Watch for info about the 2012 meeting on this blog). As with all posts we hope that his thoughts generate comment and provoke more posts so that we are all better teachers and our students better advocates.

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There is a compelling need for effective representation for indigent defendants charged with criminal offenses. This has been said for decades. It remains true. Lawyers and many non-lawyers know that the constitutional right to legal counsel for the accused was established decades ago by the precedent of the Supreme Court of the United States. See Gideon v. Wainright, 372 U.S. 335 (1963).

Since 1998, I have worked as a public defender almost continuously in state and federal courts. I began in law school at Temple University, Philadelphia, Pennsylvania, gaining invaluable experience as a legal intern at a criminal court in the area. This was a battleground, in the constitutional sense, and one of the many locations across the country where the work of indigent defense really gets done.

This post is neither a tribute to Clarence Earl Gideon, nor a celebration of the Court’s 1963 decision. The opinion, of course, is hugely important, but it has been praised many times by more prominent people. Instead, it is an argument, based on my personal experience, that not enough has been done to uphold the constitutional right in actuality. In my conclusion, I will discuss what I’ve done about the problem.


The Needs of the Indigent Defense Profession.

Now, more than ever, there is a need for skilled and dedicated trial lawyers willing to handle criminal cases on behalf of indigent defendants. First, criminal trials are the exception. More than 90 percent of federal criminal cases are settled with a plea of guilty. State courts are not much different. Often, this is done by way of plea agreements, which include bullet proof waivers of appellate rights. This means that the government is almost never required to meet its burden of proof beyond a reasonable doubt. This was not the intent of the Sixth Amendment to the Constitution of the United States. It also means that, without appeals, the common law is not developing in a natural and free manner, which is antithetical to the idea of a common law system.

Second, the government is strong. I am, of course, referring to the U.S. Department of Justice, FBI, DEA and the other federal agencies charged with investigating and prosecuting criminal offenses in the United States. Since the war on drugs began, the government has had the upper hand in criminal trials. It dedicates, for all intents and purposes, unlimited resources and unlimited personnel to criminal prosecutions. In terms of criminal trial work, the government is the ultimate adversary.

Third, there is no shortage of substandard representation. Anecdotally, in the last two or three years alone, I have seen numerous cases that have fallen well below the standard for “effective assistance of counsel”. I take no pleasure in detailing a few examples:

In the case of United States v. K.A., the government charged a Jamaican man who worked in Manhattan with a large cocaine conspiracy, involving multiple people and extending through the northeastern United States. As the case progressed, the government turned all co-defendants against the defendant. When the evidence seemed overwhelming, the defendant decided to enter a plea of guilty based on a written agreement with the government. The defendant did not fear prison time, provided he could remain in the United States upon release where his entire family lived.

The defendant’s retained counsel did no legal research and failed to confer with an immigration attorney. The attorney expressly advised the defendant during the guilty plea hearing that the conviction for drug trafficking was not grounds for removal. Once the defendant settled in federal prison, U.S. Immigration and Customs Enforcement entered a detainer for removal proceedings. The attorney’s advice was 100 percent wrong!

To be sure, there are federal offenses that do not constitute grounds for removal. The attorney should have attempted to negotiate a settlement based upon such a charge, rather than pushing forward without care as he did. If that was not possible, trial would have been the more attractive option, despite the challenges presented by the evidence.

In the case of United States v. D.S., the state charged the defendant with misdemeanor domestic violence. The defendant was innocent, but entered a so-called plea of convenience and served no jail time. However, the appointed lawyer – who was paid $124 to handle the case – failed to mention that a misdemeanor domestic violence conviction renders one a “prohibited person” who cannot possess a firearm under federal law. The judge and the prosecutor overlooked this, too. A few years later, the defendant called 911 for assistance with his unruly teenage daughter, and the police observed his firearms collection. The Bureau of Alcohol, Tobacco, Firearms and Explosives took an interest and the defendant was charged in federal court with a felony firearms offense, which carried 10 years in prison.

Then there was a drug case involving the charge of conspiracy to distribute in excess of 50 grams of cocaine base. That normally carries a 10-year minimum mandatory prison penalty. The particular defendant, however, had two prior convictions for serious drug offenses. The government filed an information and invoked 21 U.S.C. § 851, which increased the minimum mandatory penalty from 10 years to mandatory Life in prison. The attorney for the defendant negotiated a plea agreement based on the conspiracy charge. The attorney failed to realize, however, that the recidivist enhancement applied and that the penalty under the plea agreement would be mandatory Life in prison, i.e., the same as if convicted after trial!

Taken together, these points make it clear: more needs to be done in order to ensure that our justice system is fair and that defendants – especially indigent defendants – have a true voice. Rather than point the finger or complain, I decided to teach interested law students and new lawyers about the importance of indigent criminal defense.


Training for Indigent Defense Work in Criminal Court.

Prior to learning criminal trial advocacy, interested law students and emerging public defenders naturally must have a solid understanding of Criminal Law, Evidence, Criminal Procedure, and Legal Ethics. Students should begin to develop this knowledge in law school and during preparation for the state bar.

Then instructors should introduce students and new lawyers to reliable secondary sources, which clearly and accurately outline the cases, statutes, rules and procedures of their specific jurisdiction. For instance, most state public defender systems develop comprehensive training manuals and, at the federal level, there is Defending a Federal Criminal Case, by the Federal Public Defenders. Sources like these are essential starting points and will serve as the playbooks for the first couple years of practice.

It is equally important for instructors, early on, to offer formal training sessions. These should include substantive discussions along with traditional trial advocacy skill sessions. Like an advanced trial advocacy class, the instructors should focus on each phase of a criminal trial. Importantly, in my opinion, instructors should utilize files from actual criminal cases, rather than contrived or modified trial problems, which are often limited and unrealistic. The extent of the critiques and the number of skill sessions for each phase of the criminal trial will depend upon the ability of the students. These formal training sessions should conclude with mock trials so that no young lawyer, much less a law student, is asked to handle an actual criminal jury trial without at least one live and authentic mock trial experience.

In addition to trial advocacy skill sessions, law students and emerging public defenders should utilize the Internet if they have not already done so. There are thousands of videos, articles, transcripts, blogs and instructional resources relating to trial advocacy in criminal court. Nobody knows it all. Indeed, there is probably no method here. But students and emerging public defenders should probe it deeply. I suggest using the Internet to shadow the best trial lawyers of criminal courts, including, but not limited to, F. Lee Bailey, Jerry Spence, Roy Black and the late Johnny Cochran. If students and emerging public defenders study video of these criminal trial lawyers, they will be prepared and inspired during their first trial.

On a different note, instructors of law students and emerging public defenders should pay close attention to the needs and circumstances of the client. Indigent defendants in criminal court face many obstacles. They are poor and often at risk. Many are mentally ill and under-educated. In many cases, their lives have disintegrated as a result of incarceration. The public defender must be supportive of the client and empathetic. Instructors should encourage an open-minded approach. Students and young lawyers should do their best to understand the life experiences and hardships of the client and be attentive and engaged whether the client is having a good day or bad. That is not always an easy task, but that is the only way to develop a productive and trusting relationship with the client. Without that foundation, it is highly unlikely to win at trial or otherwise obtain the best result in a case.

Similarly, once students and emerging public defenders are able to embrace the client’s perspective, they can tell the client’s story. We all know that’s what good trials are about. Jurors care about people. Jurors listen to and are moved by compelling stories and ultimately make decisions based on what fits best within their natural sense of right and wrong. I do not know the best way to teach or improve storytelling, but I read scores of children’s books to my kids. The old favorites capture the essence of storytelling. Our top selection, if you are wondering, is Rikki Tikki Tavi, by Kipling.

Finally, we must teach students and young public defenders to be strong and zealous advocates. Public defenders are never the winners of the criminal justice popularity contests. Rather, they are often criticized even when they are doing what is legal, right and required by their ethical duties. The clients – especially in high-profile cases – are characterized by the media and others often as society’s greatest enemy, even when they turn out not guilty. Therefore, it is critical for those entering the public defender profession to understand that they might lose more than win. Some days will be frustrating. Many will have a dim view of the public defender’s clients and work. But none of that means that these lawyers are performing poorly. In fact, the contrary is true much more often than not. We must teach that, through it all, public defenders need to have courage while they fight within the law and try many cases.2


Endnotes

1. L. Richard Walker, Esq., is the Senior Litigator at the Office of the Federal Public Defender for the Northern District of West Virginia and a Trial Team Coach for the West Virginia College of Law.
2. Richard plans to illustrate the ethical issues facing public defenders and perhaps more about the need for courage in a later contribution to this blog.

A student view of appearing before a Court of Criminal Appeals

The Criminal Appeals Clinic at the University of Mississippi provides third-year law students with an opportunity to appeal a “real live” client’s criminal case through the writing of an appellate brief, and to present live oral arguments before the Mississippi Court of Appeals. (See earlier 2011 article on this blog by Phil Broadhead who is the Clinic’s Director) This is a view of the clinic from a student’s perspective, one who relished the chance to help a prisoner who was, it seemed, denied a fair trial.

Buddy approach

Stepping into the clinic class on the first day we may think we know what we are getting into, but we had no idea.　We were all assigned a case partner and handed a case file.　Each of us wondered if our case partner will be someone with whom we will be able to get along for an entire semester, and then we asked, ‘Am I ready to have someone’s life resting on my untested legal ability to advocate for them?’

A day or two later we printed out all of the documents and found we needed a five-inch binder to hold all the papers that we must check with a fine-tooth comb, because missing one little piece of information may be the difference between a successful appeal and our client spending the remainder of his life in prison.　Finally we were grateful that each of us was not solely responsible for writing an appellate brief on behalf of our client, as we recalled the horror of our first year legal writing efforts and the appellate brief we wrote at that time.

Issues and Writing

The class is structured to ensure that we had every tool to digest the myriad of documents associated with the case.　After going through the case documents several times, condensing them into a narrative, identifying the best issues for appeal, and doing the necessary legal research, the brief-writing process began.　The process was broken down into small, manageable sections that made the process seem effortless.　By the time our brief was completed, my case partner and I looked back and wondered how we had completed an entire brief without once being stressed.　

Each section of the brief was assigned and written individually and was coupled with classroom instruction. Once a section was completed, it was edited by Professor Broadhead, and returned to us for revision. We then had plenty of time in which we compiled the brief sections as a team for a “mega-edit.” We put it together into one document and added the table of contents, table of cases, and record excerpts for filing with the Court.

Oral argument preparation

The next step in the course was to prepare the live oral arguments to be made before a panel of judges on the Mississippi Court of Appeals.　Because the case we had been working on had not yet been answered by the State, we received a whole new set of documents and a brand new five-inch binder from a case prepared by the clinic students in the prior semester.　The most difficult part of preparing for oral arguments was being bound by a brief that someone else wrote.　At this point, we had all of the necessary skills to get through the case documents and identify all of the pertinent information in a fairly timely fashion, but if something we thought was important wasn’t included in the brief it was very frustrating to know that we had to put it out of our minds.　

Having reviewed both the documents and the applicable case law, we had two weeks of intensive oral argument preparation.　The two-person oral argument team and Professor Broadhead met three to four days per week for two to three hours at each meeting, in addition to a great deal of individual preparation.　Once again, there was that, “what have I gotten myself into” moment at the first meeting.　And, once again, we were given all of the tools and knowledge we needed to prepare an effective oral argument outline.

The first assignment was to compose our opening or closing statement, depending on whether one was doing the initial argument or the rebuttal.　Once the opening and closing statements incorporated the theory of reversal and the accompanying themes, we began to prepare the outline for the substantive argument, along with a case sheet of the controlling law in the issues to be argued.

By the end of the two-week preparation, we had a solid idea of the content of the issues, along with the elements of style in their delivery.　The preparation culminated with a dress rehearsal oral argument session presided over by other professors from the law school and a member of the moot court team.　This was when everyone realized there was no way to get through everything in the available time.

On our feet

The day of arguments was exciting and nerve-racking. I felt, wrongly, that I was wholly unprepared to be arguing against an assistant state attorney general.　Being in the room where the arguments take place was fine until the judges came on the bench, then all of the nerves hit and I began to pray that I wouldn’t screw up.　But, during the opening statement, I realized that I knew this case inside and out and was more than prepared to assert the arguments effectively on our client’s behalf.　Once a judge asked the first question, a fairly decent, maybe even a great answer flowed from brain to speech, the nerves dissipated and I was in a groove.　The eighteen minutes passed like eighteen seconds, and I sat down feeling pretty darned good.

Recommendation

The Criminal Appeals Clinic experience, or something comparable, is an experience that I would recommend to every law student. The skills or confidence this hands-on work gave me could not be gained in a traditional law school class.　My participation in the clinic was the most valuable and rewarding experience I had at law school.　It has given me confidence in my abilities to go into a courtroom and become an effective advocate, and has provided me with skills that will aid me throughout my future career.


This article was contributed by Katie O’Connell who was a clinic student in 2010 and recently began her career at the public defender’s office in Florida.

Southern District of Illinois Litigation Technology CLE

A few months ago, one of my colleagues approached me with an offer I couldn't refuse. The United States District Court for the Southern District of Illinois wanted to hold a CLE on courtroom technology. They wanted our law school, the Southern Illinois University School of Law, to help sponsor and organize the CLE, and they wanted us to focus not only on the types of available courtroom technology, but also on the advocacy and evidentiary aspects of using it at trial. Because I teach advocacy and evidence, I was on the hook to help plan and present the CLE. And because I met and became friends with Nick Caputo of the Caputo Law Firm at the Stetson Educating Advocates Conference a couple of years ago, I knew just who to call to ensure the CLE would be successful. Nick is a Chicago attorney and an adjunct professor at Chicago-Kent College of Law, where he coaches trial teams and also teaches the Mike Rogers Litigation Technology course.

To make a long story short, Nick agreed to help with the CLE, on the condition that he could bring with him a crew of trusted associates and fellow Chicago-Kent adjunct trial advocacy professors: Nikitas Fudokos, of counsel to the Caputo Law Firm; and Mike Ko, an attorney and trial consultant for Groundwork Trial Consulting in Chicago. They had to take a geography test, sign a "civilization waiver," and get special permits to travel south of I-70—something few Chicagoans have ever done—but we were able to make all the necessary arrangements, and they showed up at the appointed day and time.

The CLE took place last Friday, June 24, 2011. We conducted a morning session in the Benton courtroom, then drove two hours to conduct an afternoon session at the East St. Louis courtroom. Between the two locations, approximately 80 attorneys attended the CLE. Both courtrooms are well-equipped with the latest courtroom technology and have experienced and helpful professional and IT staff.

In addition to Nick, Nikitas and Mike, other presenters included Judge Michael J. Reagan of the Southern District, who spoke on ethics and professional responsibility issues pertaining to demonstrative evidence and electronic evidence; Judge J. Patrick Murphy, who presided over the Benton session and made introductory remarks; Thomas Galbraith, the court's IT officer, who spoke about the court's technical capabilities and the importance of advance coordination; K. Jayne Reynolds, a court deputy in the Benton courthouse, who demonstrated the court's video conferencing system; and yours truly, with a brief presentation on authentication and admissibility of electronically stored evidence. Copies of some of our handouts are available at the end of this blog entry.

The CLE exceeded our expectations. Nick and his crew gave a series of amazing demonstrations of courtroom technology in action. They used Powerpoint to demonstrate opening statements and closing arguments, and Sanction to demonstrate direct and cross examination. Their demonstrations were concise and powerful, and they followed them up by showing how the presentations were put together. Nick introduced various open-source and commercial software tools, including Powerpoint, Google Earth, Google Scribble, Windows Movie Maker, and Sanction, and he discussed the learning curve and preparation requirements for using them. Judge Reagan's presentation on ethics was informative and entertaining. In the spirit of our technology-based CLE, Judge Reagan delivered his remarks to the Benton courthouse over the video-conferencing system from his chambers in East St. Louis—a two-hour drive away.

What did I take away from the CLE?

• Courtroom Technology is Persuasive and Powerful. Used properly, courtroom technology can multiply an advocate's persuasive abilities and help teach the jury in a way far superior to the spoken word and static displays mounted on poster board. Mike Ko demonstrated an opening statement in a motorcycle accident case using Powerpoint. To be sure, he gave an excellent opening statement on its own merits; it would have been good even without Powerpoint. But the audience was mesmerized by the slides, and they significantly amplified the persuasive impact of his words. Later in the course, Nick Caputo impeached a witness using Sanction. The video recording of the witness's statement was reinforced by a window in which the text scrolled in real time, synchronized with the video statement. No wiggle room for the witness with an impeachment like that.
  
• Proper Use of Technology is the New "Standard of Care" for Attorneys. The advocacy advantage increasingly will go to attorneys who know how to use this technology persuasively. "It's too hard," or "I don't have time," or "It's too expensive," are excuses that will lose cases—and the day of reckoning may not be that far off.
  
• Jurors Expect Visual Stimuli. In the words of K. Jayne Reynolds, "I know these people. I bring them donuts, and I listen to what they have to say. Believe me, they're looking for this stuff. They ask about it."
  
• Technology Levels the Playing Field. This is a point that Nick effectively made several times. A tech-savvy small firm can compete with larger firms and win cases that might not have been possible without the technology. Most of the technology Nick and his crew demonstrated already resides on a reasonably well-equipped laptop. Other equipment, such as projectors and screens, can be rented on an ad-hoc basis. Attorneys who fear technology or don't have the time to learn it can hire litigation consultants to help them. The point is that technology can be integrated on just about any budget.
  
• I'm Not Teaching to Standard. I have a lot to learn about integrating available courtroom technology into my advocacy teaching. We don't offer a litigation technology course, but I plan to change that in the near future. What I've done so far is a pale shadow of what could be done; essentially, I've used Powerpoint and the Elmo as electronic versions of poster boards and easels. I've offered up a lot of excuses, most of them of the variety listed earlier. I'm not sure how well litigation technology would fit into a basic trial advocacy course; it seems hard enough to teach people to lead on cross but not direct; but I do think it ought to be offered as an advanced course. Most of the students have everything they need already loaded on their laptop computers.
  
• If You Don't Know How to Do Something, Call in the Experts. This CLE would have been a pale shadow of itself without the expertise of Nick, Nikitas, and Mike. Simply put, they demonstrated the best practices in using technology to teach and persuade. They kept an audience of seasoned attorneys and judges enthralled, and their performance was in itself the best way to persuade skeptics of the value of using technology. This same principle applies, I believe, to attorneys who want to use technology but don't know how to do it. Call an expert to help. It will be worth the effort.

6-21-11 Courtroom Tech Checklist

6-21-11 Choosing a Vendor

Evidentiary Principles

March NITA Notes Published

Dear Friends,

The March issue of NITA notes is hot off the electronic press. If you don't have a subscription to NITA Notes, you may access it here.

This month's issue features articles on NITA's 40th anniversary celebration and an interview with National Program Director Bob VanderLaan. In addition, for the many friends of the inimitable Bill Ossmann, the issue announces that he has been named as Washburn University School of Law's Adjunct Professor of the Year.

All the best,

Chris Behan

Teaching Cross Indoctrination Instead of Cross Examination

Michael Carr is an Assistant United States Attorney in the Southern District of Illinois and an adjunct professor of law in the trial advocacy program at Southern Illinois University School of Law. Students love him, and the following article shows why.

I tell my students that "cross-examination" generally has nothing to do with asking questions of a witness at trial and that in a sense, the use of the term "cross-examination" in a trial skills class causes confusion. I believe that the word "examination" is a misnomer because it inaccurately implies that questioning is about to occur during "cross-examination."  So, I tell the students to think of this segment of a trial as their opportunity at "cross- indoctrination."  We are indoctrinating the jury, through the use of the other party's witness, about our theory of the case (which we developed through the case analysis).  And, the word "cross" does not mean that we need to be cross with the witness. We are just taking a "counter" position.

During the indoctrination we are making statements—not asking questions-- and getting the witness to agree with us.  The statements generally are irrefutable and even if the witness does take a counter position, we can show that the witness is wrong. To add drama and effect and repetition, we break those statements down into single-fact leading statements which telegraph, sometimes subtly and sometimes bluntly with the use of tags, the point we are trying to make.  Done correctly, the fact-finder should be able to surmise what our position is early on in the indoctrination and be left with the impression that the witness is either wrong if he or she disagrees with us  or  that we are setting the witness up to prove that he or she is wrong.

As an example of this method I use one of my wife's cross examination techniques:

        You are late

        You knew you were going to be late

        You said you would be on time

        You told me you would not be late

        You didn't call

        You have a phone

        It is a smart phone

        You don't even have to dial my number on a smart phone

        You just press the button on your smart phone

        On your smart phone, All you have to do is press a button and say call Nancy. . .

Having demonstrated my wife's technique, I conduct a drill at the beginning of class using a stapler as an example.  I suggested that in a will contest case a secretary, who produced her file which contained a stapled will, had taken the position that a piece of paper, not stapled to the copy  in her file, was supposed to be part of the document which was actually executed.  We then use the stapler, as an example of how to use single fact, leading statements, to indoctrinate the jury about our position that the paper was not part of the executed will.  Each student takes a turn at making three or four indoctrination statements before passing to the next student:

        Your office has a stapler

        You know how to use it

        It does not require special training to operate

        You just stack all of the papers together and push down on it.

        And it staples.

        It staples them together. . . . 

The questions all imply that the stapled copy was in fact the real document, that the office procedure was to staple the document together so that there wouldn't be any questions later about it and that the piece of paper which was not attached was not part of the will.

        I then have each person take a shot at the cross assignment for the week.  I stop the examination immediately when a question is asked, and I have the student make a statement in place of the question. Once it is apparent that the student understands and is making statements instead of asking questions, we moved on to the next student.

    Both my students and I enjoy these exercises.

Competency and the Trial Bar: Using Medical “Privileging” as a Model

Scott Donaldson – trial court judge in Tuscaloosa County, Alabama; adjunct faculty in Trial Advocacy, University of Alabama School of Law. The views are solely those of the contributor.

Many thanks to my friend Professor Chris Behan for the opportunity to join in the discussions. I really enjoy reading the views of the contributors.

A license to engage in professional activity, as opposed to a trade, should require at least some indicia of competency. Here's a question - what profession permits a licensee to engage in an activity affecting the life, liberty or property of a citizen with no training in that activity? Law. Our law schools are doing a fantastic job of educating lawyers, but even the broad scope of that education over the traditional three year model cannot address all aspects of practice. Thus, a person can graduate from law school, pass the Bar exam, and represent a client in court without any proof that he/she is competent to do so. Perhaps this deficiency was remedied in the past when newly admitted lawyers were promptly hurled into "minor" civil and criminal trials, often under the tutelage of a more experienced lawyer. While I question the quality of representation in those first few trials, experience taught lessons that improved the quality. But times have changed. Today, even lawyers with a "litigation practice" can go years without trying a case in my area of the country for two primary reasons: (1) there are more of them resulting in fewer trial opportunities per lawyer, and (2) there are fewer civil trials due to mediation and/or arbitration. Thus, the lawyer who did not obtain trial advocacy training in school will not likely obtain much on-the-job trial experience either. As a result, the overall quality of representation diminishes.

I am firmly convinced that lawyers who took (and passed) a meaningful trial advocacy course or who regularly try cases (bench or jury) are more effective, more informed about the Rules of Evidence and Procedure, more confident, and more efficient in utilization of limited resources than those who do not. Their clients are better served and are more satisfied with the process. Thus, I think we should consider a bifurcated license. Pass the Bar and you are licensed to practice law. To represent a client before a court, however, you need an additional certificate. You obtain the certificate by satisfying additional requirements such as either (a) establishing that you took and passed a trial advocacy course in law school within three years of applying for the certificate, or (b) obtaining 12 hours of approved continuing legal education training in trial advocacy courses. Once you have obtained the certification, you may renew it every three years by establishing that you have appeared in at least ten cases or tried three bench or jury trials to verdict, or, obtained 24 hours of approved trial advocacy CLE. (The number of CLE hours and trials are for discussion only.)

Now, I'm not suggesting that we evolve toward a barrister/solicitor system as found in some countries, primarily because I am ignorant about those systems. I am suggesting, however, that it is time to seriously question why we are licensing lawyers to do something they don't know how to do. Perhaps we could analogize the additional certificate to the medical "privileging" concept. A physician can be generally licensed to practice medicine in a state, but must obtain additional "privileges" to perform services within a hospital such as operating on a patient. To obtain the privilege, the physician must prove that he or she has the requisite skill and expertise through training and/or experience. When properly applied, the system operates to protect patients from incompetent care and quality improves. Furthermore, the privileges are periodically reviewed to ensure a continuing level of competency. For example, a physician who has not performed an operation in years will either lose the privilege or be required to obtain refresher training. The same approach could be used for lawyers as well. A lawyer who has not represented clients in court in years should not be licensed to do so without some type of review.

I'm quite sure there are many downsides to this proposal, but we cannot continue down the same path and expect anything to improve. The public has a right to question the quality of services being rendered by what remains a profession. We need to respond.

Becoming an Adjunct Trial Advocacy Professor

This piece follows up on Charlie Rose's article on becoming a law professor, and Mark Caldwell's article on breaking into teaching ranks of NITA and other organizations. The third way to teach advocacy is to join the faculty of a law school as an adjunct professor. I'd like to add a few insights on how to break into that market. I recommend reading the articles from Charlie and Mark first, however, because I don't intend to repeat any of their very solid advice, and much of it is applicable to teaching as an adjunct.

Most law schools employ adjunct faculty to teach courses, both doctrinal courses and skills courses such as trial advocacy. The majority of adjunct faculty members practice law in the public or private sector or serve as judges. Students enjoy taking classes from adjunct professors, who bring a real-world perspective to the classroom and bridge the gap between theory and practice in a way that many full-time faculty members cannot or will not.

Teaching as an adjunct is a labor of love. I have never met anyone who became wealthy as an adjunct professor, nor have I met any law school adjunct professors who could make a living from their adjunct salaries. The small stipends that law schools pay adjuncts can never truly compensate them for their time. I sometimes think of how much income my civil trial practice professor, a partner at a major law firm, must have lost to teach our weekly class, which involved a two-hour round-trip drive and a two-hour class. Nonetheless, there is never a shortage of adjunct faculty candidates for open positions. I believe this is because many lawyers love what I call the great teaching tradition of the bar: the opportunity to impart knowledge to a rising generation and help mold the careers of lawyers-in-training.

In a trial advocacy context, few trial ad programs could function without adjuncts. Advocacy is labor-intensive. As we've learned from NITA's research over the years, the ideal class section for trial advocacy is about eight students, with twelve being the outer limit of what an instructor can handle and what will give students a fair opportunity to learn by doing, which is the key to mastering advocacy. Some programs have adjuncts teach a stand-alone advocacy class, and others, such as the one I teach, feature a lecture and lab format, in which a large number of students meet together for lectures and demonstrations, then break into smaller groups for practice and grading. No matter how these courses are organized, there is always a need for good adjunct professors—and lots of them.

So—how to break into this market? Let me offer a few tips. There are doubtless others, and if you have some, please add them to the comment page for this post.

1. Examine your motivation. If you love to teach, are good at it, and are willing to essentially give away your time for the intangible rewards that come from teaching, you're on the right track. If you're hoping to pad your resume, or use an adjunct position as a launching point for a career in academia, you might want to reconsider. Because of the nature of law school faculties and the hiring process (see Charlie's post), your chances of moving from adjunct to full-time professor are slim. It does happen, but it's rare. Ask yourself—would I do this for free and for no recognition other than the good work of my students? If you would, you're probably doing it for the right reasons.

2. Evaluate your skills. Not all good advocates know how to teach others to try a case. If you have no experience teaching advocacy, your candidacy might not be as attractive as someone who has taught advocacy in other forums, such as NITA courses, high school or college advocacy teams, and the like. This might be true even if you are a successful lawyer from a prestigious firm. Speaking from my own perspective, when evaluating adjuncts, I look for relevant teaching experience more than trial experience. Bars throughout the country are full of great trial lawyers who can tell great trial stories, but NITA proved long ago that a systematic approach to teaching trumps war stories in effectiveness.

3. Become a Volunteer. You can get volunteer teaching experience in a variety of ways. Advocacy programs at law schools always need people to serve as judges or evaluators. Trial competitions have a voracious appetite for volunteer judges and teachers. Your bar association might run programs or need CLE instructors on advocacy topics. If you are near a law school, get to know the director of the trial advocacy program and offer your support. Directors are grateful for the support, and they always get feedback from the students about volunteers who are particularly good. To echo something Mark Caldwell said in his article on teaching for NITA and similar organizations, when someone takes you up on your offer to volunteer, make every effort to be there. My own start in advocacy teaching came about 8 years ago when Charlie Rose had a conflict and could not make it to Jim Seckinger's week-long trial course at Notre Dame in which Charlie was an adjunct. He asked me to substitute for him, and Jim kept inviting me back. I never did become an actual adjunct at Notre Dame, but I did teach in the program for several years. The experience, the contacts, the advocacy teaching training I received—all were invaluable.

4. Get Certified. Several years ago, I took NITA's Teacher Training Program at Harvard. This course was one of the transformational moments in my professional life. Learning how to recognize teaching moments and help students improve in a systematic way changed the way I taught, and I have to say, it also changed me as a person. In fact, I took the course in between the first and second times I taught for Jim Seckinger, and Jim—who did not know I had taken the course—made several comments about the vast improvement in my teaching ability. I'm not trying to pat myself on the back here; instead, I'm trying to emphasize just how influential these training courses can be. NITA offers a course, Stetson offers a course, and I know there are other teaching courses out there. It's worth the time and money to take one.

5. Comply with University Search Requirements. I'd love to just pick up the phone and hire a good adjunct when I need one, but I work for a state university, and we have to comply with university search requirements and state law. I've experienced problems in the past with candidates not submitting materials that are required by the university as part of the hiring process. If you hear about a position, don't assume that your friendship with the dean or advocacy director will get you the job. Fill out the proper paperwork and turn it in on time.

6. Work and Play Well With Others. As I mentioned earlier in this post, schools use a variety of approaches to teaching advocacy. You might be a lone ranger, running your own program and class without guidance or assistance. You might run your own program within well-established school guidelines. You might be part of a unified advocacy faculty such as the one I have at SIU or that Tom Stewart has at Saint Louis University. If you are part of a larger program, and don't happen to be in charge of it, be a good citizen. Never disparage your fellow faculty members in the presence of students. If you disagree with a policy or teaching approach, bring it up in faculty meetings, not by open resistance to it in the classroom. Turn in grades on time and comply with administrative policies that are designed to keep the program running smoothly and comply with school rules and requirements.

7. Always Put the Students First. This is the key to advocacy teaching, no matter what the arena. The students come first: before your ego, your wit, your desire to tell one more war story, your moods or your exhaustion. If you put them first, they will notice, and you will have a lengthy and successful experience teaching young advocates.

Connecting Case Analysis and Argument: A Belated Coda

From Bob McGahey:

A Belated Coda to Connecting Case Analysis and Argument

Sometime back, my colleague Tina Habas wrote (available here) on how to integrate case analysis with argument. Her idea of having students immediately use something from the examination they just did as a part of closing argument was inspired, and I’m going to have my Advance Trial Practice students do that this semester. I also realized that it was a logical extension of something I was already doing when teaching case analysis and storytelling to my Basic Trial Practice classes.

We work on case analysis and storytelling before we do anything else. The students in my Basic Trial Practice class learn case analysis by looking at a simple case (In re: Robert Reed works quite well), using the “Good Facts,” “Bad Facts,” “Neutral Facts” format. We discuss the case in a free- wheeling format, with students calling out individual facts. After we’ve put a lot of seemingly unconnected facts into each column, I first have them think about which 5 facts they like the most or the least, depending on which party they represent. I then make each student pick one uncontested fact from the “Neutral Facts” column and any two other contested facts (good or bad or one of each – and not necessarily any of their 5 best or worst facts) and then give me a minute or two of closing argument that links those three facts together in a persuasive way to support a position on their side of the case. This helps them start to see how facts must be linked together to convince a fact-finder, folds storytelling into the process, and also makes them have to think on their feet. If the class is willing, I’ll pick the facts for them. The students generally find this to be fun; you can see the wheels turning as they try to quickly come up with their arguments.

Bob McGahey

More on Voir Dire: Teaching Techniques from Jeanne Jourdan

Jeanne Jourdan is a master advocacy teacher whose creativity, enthusiasm and skill have enriched generations of Notre Dame and NITA trial advocacy students. In the following post, she describes her methods for teaching voir dire to students.

I read both Professor Stewart's lecture on Jury Selection (available here) and Judge Habas's comments (available here) with interest. Here is a handout I use for a drill on Jury Selection when working with young lawyers and/or students. It offers practical techniques, borrowed from other professions, designed to help keep potential jurors actively engaged in the process, feeling competent, and listened to. It reflects my observation that lawyers who have no time limits are very boring and those with time limits often waste precious time. The class assignment is to prepare 5 minutes of jury selection in their case demonstrating 5 different techniques. By the way I think Teach like a Champion is a really helpful book for all of us who are teaching.
Jeanne

In Teach Like a Champion, Doug Lemov shares classroom techniques that put inner city students on the path to college. At Teacher’s U, the faculty from Uncommon Schools, KIPP and Achievement First are teaching these techniques to thousands of teachers. Lawyers can borrow many of these techniques in questioning potential jurors to put them on the path to a favorable verdict.

In the courtroom just as in the classroom, boredom, confusion and lack of activity are negative possibilities. Master teachers use a set of tools to help students stay engaged. We can too. In fact we must. Too often, if there are no time limits, jury selection is, as one judge in Goshen Indiana told jurors, “very, very tedious.” When there are time limits set by the court precious time is often wasted. We need to change. None of us wants tedium to be the first impression we create; nor do any of us want our first experience in the trial to be frustration.

Jury selection has one goal – excuse people whose experiences indicate they will reject our case. We ask questions to discover people who are pre-disposed to reject the law, the witnesses or evidence in our case. We ask questions to explore concepts key to our case and determine which potential jurors will reject them. Our questions are open... "Tell us, Describe, How did you, Raise your hand if...?" when we are seeking information and leading when we challenge for cause.

We can borrow techniques that effective teachers use to keep their students engaged and learning. There is a right and a wrong time to use these techniques, a time and a place for every tool. The art of trial advocacy is in the vision of when to apply a particular technique. Nevertheless learning the techniques is the first step toward success.

Please read this list of techniques which Doug Lemov has labeled and explained for the classroom and I have put into a courtroom context.

A.In the margin put a “?” beside those you do not understand;
B. Put a “+” beside those you think will be useful tools for jury selection.
C.Put a “*” beside five techniques you are prepared to demonstrate so others can learn from watching you.
D. Come to class prepared to ask questions for 5 minutes demonstrating your 5 starred techniques.

1. “Stand still” - when you want undivided attention. (Nothing in your hands, no checking, reading or walking).

2. “Cold call” – Ask a question first, pause briefly, then call on someone so that everyone prepares an answer.

3. “Wait time” – Ask question to group then say “I’ll give you think time”, pause before you call on someone.
Example: Q1. “What are the 2 most important aspects of doing your job well?

4. “SLANT “ - Stand straight, lean forward, act interested, nod and smile, track (look at) the speaker when a prospective juror is answering your question. It’s important to the speaker that you look like you are listening.

5. “Strong voice” - if it matters it’s important that everybody can hear.

6. “No opt out” - You get the answer “I don’t know” (the opt out) get another person’s answer and go back to the person who opted out and find out if he agrees.

7. “100%” - You get an almost right answer, smile say “you’re on the right track”, say “not quite”, say “almost there”, say “what’s still needed?” praise effort but do not confuse it with getting the answer right.

8.”Transaction costs” –. You want to get everybody involved with the least time devoted to any single person. Identify persons who reject your theory of the case or the requirements of the law; don’t try to change minds and hearts.

9.”No apologies” – A belief that jury selection is boring, a hardship or tedious is a self-fulfilling prophecy. Do not apologize for doing your job. Do not blame others for what you are about to do. Do not denigrate your competence or jury service itself as a hardship.

10”.Begin with the end” – Plan, plan, plan for the big picture first. It will tell you the factual and legal issues you need to discuss with the potential jurors and limit yourself to those points. Write down your objectives – challenge people whose experiences are negative on points 1. 2. 3. 4. 5. 6. 7. Limit the points to those that are needed for success.

11. “Post it” – write words down on a chart. Many prosecutors write down the elements. Are there any other charts? How many charts are too many charts?

12. “Shortest path” – Take the most direct route. If you want to ask questions about the law tell the jurors the instruction’s words then ask questions. If you want to challenge for cause switch to leading and ask the “fair and impartial” question. Example: Given your belief that police officers lie can you be a fair and impartial juror who listens to an officer’s testimony with an open mind?

13. “Double Plan” – What will all the other jurors be doing when you are talking or asking one person questions? Note: The fewer words spoken/ the greater the interest in them.

14. “Ratio - Play volleyball not soccer “ – You want to hear from as many potential jurors as possible. This means you cannot talk for a long time before you give the ball to them nor can one juror talk for long before you get the ball back and throw to another person.

15. “The Hook” – give a short engaging introduction. A story, an analogy, ice breaking humor, or a call to status before beginning your questions. Do not repeat the judge, talk about yourself or re-explain the selection process. Above all take less than a minute.

16.”Name the steps” - break down a complex task into specific steps. 10 STEPS to “decide the case” do any trouble you? Or There are ways to judge credibility (go to the instruction) who has used these before?

17.”Break it down” – Help by providing examples before asking questions. Example: The judge will instruct you that “beyond a reasonable doubt is a firm conviction in a matter of the highest importance to you when you are not required to act at all” for most people that was buying a house. For others it was the decision to have elective surgery. Who has had one of those experiences? A similar one?

18. “Check for understanding” - At end of discussion ask if everyone agrees then circle back to those who disagree to challenge for cause.

19. “Hands up” – Tell jurors to put their hands up when their answer is yes. Example: Who has a driver’s license? Who’s gotten a ticket? Who thought the ticket was unfair? Who drinks alcohol? Who has seen someone and decided he/she was drunk? Whose job required training? Who thought training improved their performance of the job? Who ever came to court before?

20. “Pepper” – short questions delivered without interruption or exploration during which everyone participates by answering with a hand gesture or nod.

21. “Write it down” – something you want them to remember requires that potential jurors already have paper and pencil. Look at #3.

22. “Everyday” – Reflects the theory that people’s everyday experiences and behavior reflects how they’ll act as jurors.

23. “Be positive” – model confidence in your case through body language – stand straight and still, look people in the eye, get away from the podium.

24. “Circulate” – Make sure you give every potential juror a chance to speak; don't start at either end.

25. “Communicate confidence” – Just as a teacher tells his students that they can do the task at hand the lawyer wants to communicate confidence in potential jurors ability through questions. Example: Will each one of you tell me an experience you have at work or within your family that will help you be a good juror?

PEOPLE SKILLS IN JURY SELECTION

“People who can get things done through others – those who persuade, those who can motivate, those who are liked and get along well with others – stand the best chance at becoming effective leaders.” Michael Zigarelli writes that there are 20 time tested human relations practices, “soft skills”, which are critical to success in business management. Often, lawyers who consider “hard skill “ points neglect “soft skill” considerations. Hard skills are the issues that need to be explored; soft skills are interpersonal skills. None of Zigarelli’s suggestions are original. They are time honored and battle tested. They are especially helpful to practice during jury selection. Here are the top 10.

1. Listen closely and actively – Nothing incenses a potential juror quite like the feeling of being ignored. SLANT will help you look like you are listening.

2. Smile A Lot - Check out your expression does it say “leave me alone” or “we’re in this together”?

3. Make Them Feel Important – Be an encourager and affirmer. Let jurors know that you think who they are and what they do has genuine value.

4. Remember every Name – Everybody likes the sound of their own name. When you use a person’s name it makes them feel memorable.

5. Focus on your Similarities – Look and talk and dress like they’d do in your place. Jurors are more likely to be influenced by people who are similar to them. Focus on commonality when you can.

6. Don’t interrupt when someone is speaking or complete their thought for them – it infuriates them.

7. Ask about their interests – People are most at ease talking about their work, family and hobbies; people love to talk about these topics and you will learn a lot about them when they do.

8. Show appreciation – when someone expands an effort from which you benefit – even if its something they’re obliged to do – let them know you appreciate it. People feel entitled to it and when gratitude is withheld resentment can fill the vacuum. Thank you, I appreciate your candor, That’s interesting all work – Do not reserve them for bad answers!

9. Identify jurors needs and get in the habit of meeting them – the trial is not all about you; some of the people in the box will have the power to return a verdict. Be sure everybody can hear, can participate, will feel smart, will feel listened to and appreciated.

10. Don’t assume you’re looking for a right answer – Change your mind-set from “let me tell you the right way to be a juror” to "this is a learning conversation". Ask questions to learn about people; every answer is the right answer.

Teachers of Advocacy: Asking those in your Community

This post is tangentially related to advocacy, insofar as sentence advocacy is a part of the criminal justice system in federal court. In my neck of the woods, we not only have the occasional corrupt governor, but we also have lesser public officials who regularly succumb to temptation and use their public offices as a means to help them commit crimes.

One such official is former Gallatin County Sheriff Raymond Martin, who just received two consecutive life sentences for marijuana distribution and plotting to kill witnesses. The sentencing judge was the Honorable Phil Gilbert of the Southern District of Illinois in Benton, Illinois. The Washington Post has a great article describing the sentencing hearing and quoting Judge Gilbert's rather straightforward condemnation of the former sheriff. The article is available here.

Now--the advocacy connections.

First and foremost, if you share this with students, let them know that Raymond Martin is a classic example of how NOT to present one's self at a sentencing hearing. Witness preparation is important, and in a criminal case, getting a client to appear in the best light at a sentencing hearing after a contested case is no easy task.

Second, I enjoyed this article very much because I know the people in it, and it's nice to see them get some positive recognition on a national stage. Judge Gilbert regularly (and with supreme patience) serves as a trial judge for our basic and advanced trial advocacy courses at Southern Illinois University. Three of our trial advocacy adjunct professors are Assistant U.S. Attorneys in the Benton branch office, and I know at least one of them was deeply involved in trying the Martin case. Without their service, my trial advocacy courses would lack life, vitality and reality.

The point is this: if you are a law professor teaching a trial advocacy course, reach out to the legal talent in your community. Their viewpoints and experience are priceless, and one thing I've learned over the years is that most people who try cases are natural teachers who want to help neophyte advocates get better. It's a wonderful experience for a student advocate to learn from the very best your area has to offer, and even in a remote place like Carbondale, Illinois, we have some exceptional resources available to us.

A Guide to Using Case Map Software in a Teaching Environment

This post is courtesy of Nicholas Caputo, a Chicago attorney and adjunct professor of law at Chicago-Kent College of Law.


We teach Case Map in the Rogers Litigation Technology class at Chicago-Kent. Overall, the students are receptive to this software and I would recommend that you consider teaching it. Some of our students are already encountering this software at law firms where they clerk so knowing how to use it gives them another selling point in this very tough job market. We introduce this software over the first two classes of the semester. It makes sense practically, because as you point out, this is mainly a pre-trial case organization/case analysis tool. However, the software does have add on features for preparing demonstratives for use at trial (such as timelines). So the conclusion of our Case Map class then becomes a natural segue into our next lessons regarding use of the technology for trial presentation.

Here are ten steps for using Case Map in a trial advocacy teaching environment:

1) Contact your school’s Lexis Rep and see if your students can get a free trial license. We have this option at Kent so it does not cost the students anything extra.

2) Before your first class, have your students download Case Map and make sure it is working. They should also obtain a copy of Adobe Acrobat. There are free versions of Adobe Acrobat, but the Professional version can be obtained with student discounts for about $100 and is worth every penny.

3) Consider a basic lecture on turning all hard documents into electronic format and setting up and organizing electronic files. I can send you a separate discussion on this. This is also a great time to introduce some of the features of Adobe Acrobat that are a must for litigation. Adobe is also integral for using Case Map. I can send you a separate discussion on Adobe Acrobat in a future email.

4) Distribute or make available an electronic mock case file for your students. Using a trial competition case file is perfect. You want a case file with a nice cross section of various types of evidence and documents (i.e., statements, letters, police reports, deposition transcripts, letters). The more dates, times, people, and issues, the better---it will help them see the capabilities of the software.

5) Walk through the set-up of a Case Map file with the students, having each student follow along and set up an identical file on their own computer. The software will walk you through adding the names of the key parties and witnesses during the initial set up. Additional names can be added at any time later.

6) Show them how to import one of the electronic documents (i.e., a police report) from the mock file into Case Map. You can then show them how to go through the contents of the information contained in the first document adding and tagging each piece of information and assigning issues, etc. This process should be repeated until all documents and information contained therein are added to Case Map.

7) You can now show them how the information can be displayed (using various reports) or sorted, etc. This will also help them to realize the importance of carefully entering and tagging the information into Case Map. The old “Garbage In, Garbage Out” adage applies well.

8) The pay-off is finally showing the students how they can quickly make some powerful timelines (by using Time Map) in a matter of minutes.

9) Assign your students another case so that they can go home and try all of the above steps on their own. I have invited students to use a real case that they may be working on as a clerk and have allowed trial team members to use the case file from their competition. This gives them a little more incentive to build a robust file.

10) The following class can be used to have each student show various portions of their case map file, any case map reports you may designate, and of course, their demonstrative timelines.


The above steps are designed to give the students a basic understanding of the software and an opportunity to explore some of its features. You can of course go much deeper with this program if you want to devote additional classes. I would be happy to discuss this in further detail with you or any of those that follow your blog. If anyone is interested in more specifics or some sample materials, I would be happy to share them.

Charlie's Tingle: the Quest for Advanced Skills and Advanced Teaching

Charlie’s tingle (and the need for it) raises a few general issues about advocacy teaching that deserve our attention. To begin the discussion, or rather to continue what Charlie unlocked, here are some basic concepts.

Advocacy is a performance skill that can be acquired to very variable levels of competency as a result of training, experience, ability to self-critique, and ‘born with aptitude’. As such a skill it is most readily acquired when the student has enthusiasm and the trainer combines experience with a sound teaching method.

Advocacy skill’s (and parallel skills such as interviewing, negotiation, writing) requirement for trainers with real experience sets it apart from the ‘black letter’ and even the ‘procedural’ subjects of a law school because those subjects can be taught by bright people with no ‘real practising law’ background.

Sadly there is little profession and community recognition that advocacy is a skill that can always improve, that always rewards reflective practice. It is as though the bar for competency is set at the ‘it’s ok’ level. Famous advocates are likely to be seen as just ‘born with the gift’, rather than as people who took that gift and worked hard and long to nurture and develop it. Contrast this state of affairs with the attention that is given to the ‘maturing and development’ of other performers and creators (such as singers, dancers, artists, poets, playwrights, novelists , celebrity cooks, etc.)

In this environment advocacy teachers fall into two groups: the full time teachers (such as the three co-ordinators of this blog, and Mark Caldwell of NITA who writes for this blog) and those who add occasional teaching to their already busy professional lives as judges, prosecutors, private attorneys. What both these groups share is an enthusiasm, indeed a passion, for passing on their skills to those who want to learn. These ‘would be’ advocates include law students with a dream of advocacy success, lawyers who now know from practice experience that they need to acquire basic advocacy skills, and students and lawyers who are required (be that by course requirements or employers) to gain some insight into basic advocacy. Of these three groups the first two are naturally motivated and the last, once fear is overcome, are usually surprised at the fun to be had.

Teaching and learning fundamentals require repetition, lots of it. The repetition is of the explaining, the doing, and the critique. That activity (which could become boring, even soul destroying) is made exciting because of the dynamic that reflects teacher passion and student motivation. There are similarities with first steps in reading and numeracy: there are no short cuts, practice makes perfect, some learn quicker than others.

As a method for teaching and learning the NITA approach works well because it combines an incremental, repetitive learning process with the opportunity for teachers to demonstrate their skills, be that by demonstration or the set piece exposition. That is, it is fuelled by the enthusiasm of everyone who is involved. It immediately rewards everyone and that sustains the enthusiasm. An added attraction of the NITA method is that it is easy to teach to ‘would be’ teachers. For further analysis of the attributes of teachers see the articles on this blog by Mark Caldwell.

The end of advocacy courses (be they NITA intensives, or semester units) are often marked by a high level of genuine warmth. Course evaluations are likely to be strongly positive. But what becomes of that skill level six months, one year and more later? A skill not used is a skill that withers. A skill that is countermanded by supervisors or judges is locked away and forgotten. If there is any data on the resilience of the basic skills that we teach, and/or on the extent of self-critique by practising advocates, then we need to know about it on this blog.

I confess to a strong sense of failure over the long term. Just once I was confronted in court by a young advocate who had been very promising when I last saw him in class two or three years before. His mistakes were so basic and so numerous that my colleague had to remind me that my first priority was to win the case and that I could ‘retrain’ my opponent only after we had defeated him and his client. Of course, such ad hoc, anecdotal instances do not make an argument. Somewhat stronger, and so more worrying, are the couple of hundred court reports that I receive each year from my students. Consistently, semester after semester, these students report that competent advocacy (as measured by OK technique on direct, cross, objections and address) is never more than 20% of all advocates observed. I am reflecting an across Australia perspective, a nation where well-structured basic advocacy training following the NITA model has been readily available for over 20 years.

The general acceptance of “it’s OK if it seems OK” on the part of the profession and the wider community is cause and effect of the malaise. If more professionals saw the benefit in further skill training then the level would rise, if only because they would win more cases at the expense of those who stayed in the rut until competition forced them too into skill improvement. Meanwhile advocates are adept at passing the buck for their errors. The community is quick to look for surgeon/physician error but very slow to blame bad advocacy for litigation results. To claim, ‘the patient would have died anyway’ is not as acceptable as ,’the client was probably guilty/ the police didn't do their job/ the witness stuffed up’.

Charlie’s tingle – its what, its when, and with whom – illustrates a rather basic, but not much uttered, aspect of advocacy teaching, namely that improving skill beyond the basic requires a ‘coaching and mentoring’ approach. This is not the classic NITA method. It is ‘post-NITA’. Its essential elements are that the student’s respect for the coach is derived from the student’s objective knowledge of their limitations and the capacity of the student working with the coach to go further. Read Charlie’s post again and the unwritten words are ‘mutual respect for professionalism’.

As advocacy teachers, wherever we are, we need to identify and share some new skills to enthuse practising advocates and the exceptional students to engage with further training. This is a matter of both ‘how we engage with the student’ and ‘what skills are to be developed’. An example of both may be seen in Jeanne Jourdan’s comment to my post on direct examination. Perhaps we need to look carefully at the approaches followed by the great coaches – be they in the arts or sport (all those being performance skills).

We all need Charlie’s tingle – it’s that warm and fuzzy, that body chemical, which sustains enthusiasm to teach. But as our profession and the law schools underrate advocacy skills it is our responsibility to develop new courses that are truly advanced – not only in skill content but also in teaching method. We’ve got our work cut out and I can feel a tingle coming on.

Hugh Selby ©
January, 2011.

The Value of Open-Ended Questions: A Drill

The following blog entry and drill is courtesy of Jack Nevin. Jack is a trial judge in Pierce County, Washington; an adjunct professor of trial advocacy and military law at Seattle University School of Law; and a retired Brigadier General in the United States Army Judge Advocate General's Corps.

Who Am I? An Advocacy Drill

Using only open-ended questions, students must examine the instructor, who plays the role of a witness, to determine who the witness is and what happened. The scenario we present is a child who witnesses a possible crime at their school.

Setting Up the Drill

First we characterize direct examination as the most important part of the advocate's case.

Next, we focus on the importance of open ended questions which allows the witness to tell their story.

Running the Drill

The students are told literally nothing, and are required through the use of open ended questions, to determine who the witness is and to identify their situation. The teacher should have a story in mind, so they are not inconsistent in their responses to the students. The students are limited to questions beginning with who, what, where, when, how, describe, list, "tell me about", or any other open ended word. Since the teacher conducting the drill is an adult, the students don't usually pick up the age (10) until later in their questioning. If they stay with open ended questions they can usually identify the name, age, and location (school hall) early on. By staying with the open ended questions, they can learn what happened to whom, and what the sequence of events was.


Aftermath and Follow-Up
Thereafter we ask the students to tell the professor what happened. If successful they can identify the child by name, state his age, and what happened at the school that day.

This exercise shows the students that they can learn literally everything they need to know by open ended questions. It also shows the importance of open ended questions and of course gives them the necessary practice.

The Role of Advocacy and Advocacy Professors in the Law School Curriculum

This week I am in Reno, Nevada, teaching evidence at the National Judicial College. I always enjoy the opportunity to interact with state court trial judges to discuss evidentiary issues that are of concern to them.

One of my fellow faculty members, Scott Donaldson, is a judge in Tuscaloosa, Alabama. He is also an adjunct professor at the University of Alabama School of Law, where he teaches trial advocacy. On our walk back from the College to our hotel this afternoon, we discussed the importance of trial advocacy in the law school curriculum. Scott, like many others I've met over the years, thinks trial advocacy ought to be a required course at law school, even in this day and age of fewer trials. He compared trial advocacy to learning how to suture a wound in medical school: a basic skill that a graduate of a professional school ought to have.

The issue of what role advocacy should play in the law school curriculum, and who should teach it, is an important one, especially as the ABA is considering outcome-based evaluation models for law schools. I know that law schools employ a variety of approaches--and instructors--to teach advocacy. In some schools, full-time advocacy teachers are tenure-line faculty members, treated as the equals of their doctrinal peers; in other schools, full-time advocacy teachers are non-tenure track and may have a lesser status in their law school hierarchy. Nearly everyone makes heavy use of adjuncts for trial courses.

The South Carolina Law Review is about to publish an article about law school faculties, scholarship, and the role of skills education in the legal academy. An abstract of the article has been circulating through our faculty. Some find the tone objectionable, others find the content objectionable, and a few actually agree with the article.

I'm including a copy of the abstract and a link to the SSRN page of the current version of the article. I know from conversations at advocacy teaching seminars that these issues are near and dear to the advocacy teaching community. I'd be interested to get your feedback on this article. Are the author's points valid? Does he make his case? What is the ideal way to teach advocacy, and what status should the faculty have?

My two cents: I think that those of us in the legal academy who teach advocacy to law students are in a unique position to bridge the gap between theory and practice. Working closely with members of the bench and bar, we appreciate what our colleagues bring to the table. I think we can make the case that advocacy teaching is a viable academic discipline, as well as valuable skills training.

My intent here is not to attack traditional legal scholarship, or those who write it. I enjoy scholarship; it's one of the reasons I sought a position as a law school professor. But I do think the author of this piece makes some valid points that are worthy of consideration.

Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy
South Carolina Law Review, Forthcoming 2010.

Abstract:
In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century.

It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law.

Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646983

Initial Case Analysis for Trial Teams

This post is from Wes Porter. Wes teaches trial advocacy, evidence and white collar crime at Golden Gate University School of Law in San Francisco. If you are involved in coaching trial teams, please take the time to comment on Wes's approach to case analysis.

The fall mock trial season is upon us.

The trial competitions’ fact patterns come in, we select our trial teams and advocacy teachers and trial team coaches begin to meet with their trial teams. In recent years, the most dramatic change to my approach with trial teams, and with our adjunct professors and trial team coaches, has been with these initial meetings and the instructor’s role. I have abandoned my former approach in favor of an approach which benefits students more down the road in practice, than in the impending mock trial competition. I am interested in thoughts and comments about your initial meetings with trial teams.

I start from the premise that (i) the review, analysis and organization of a “case file” as an advocate and (ii) “brainstorming” case theory and potential themes are critical advocacy skills. These are skills that may not translate into tangible results in competitions, but they are equally worthy of our attention in training future advocates. Stated differently, we should not allow ourselves, other instructors or even more seasoned (read: more confident, more vocal) students to review, analyze, organize and “brainstorm” for our student competitors. Like all other aspects of our skills training, we must communicate our expectations to our students and provide modeling and critical feedback about their performance. Lastly, we must impress upon our competitors the relative importance of this skill as compared to the glitz and glamour of the significant cross exam and closing argument, to which they will all want to fast forward. In practice, without the hard work with the file and early “brainstorming” about case theories and potential themes, the dramatic closing or “big” cross exam will never see its fullest potential.

What are our expectations from all mock trial team competitors in these initial meetings? And what are the teaching points that we hope the students can gain from “their time” with a file before we become involved?

I have three expectations / teaching points for these initial meetings: review, report and review again.

First, review: we expect students to spend their own time with a new case file reading, re-reading, structuring, dissecting, analyzing and “brainstorming” case theories and potential themes before their instructors and teammates are involved.

Second, report: we expect our students to communicate independently their hard work with the file and their own persuasive ideas (the good, bad and ugly) about their case presentation.

Third, review again: we expect student to return to the file with different perspectives and ideas after these initial meetings.

To these ends, after assigning attorney roles, I used to require closing arguments during these initial meetings. A closing, as we all teach, should demonstrate a careful review of the file, persuasive organization of the facts and the semblance of a case theory and theme. Sometimes they did. Most often these initial closings reflected poorly organized speeches about some of the facts and little true consideration about the case. I abandoned the “closings approach” a few years back.

In my new approach aimed at these same pedagogical goals, I, and our other instructors, play supervising attorney or senior partner conducting an initial case review. I read the file, but I do not use what I know other than to ask questions of the advocates. For instance, I require the party with the burden to set out the claim or charge, their case theory, anticipated witness testimony, other evidence, possible themes and evidentiary issues. I do the same for the opposing attorneys. I only ask questions. To inquire about potential themes we may ask, how will you explain that to jurors so they understand it? I ask questions that lead to more questions, research, meetings and, most importantly, a purposeful, re-view of the file.

These initial meetings should gain a slight reputation in the mock trial program. That is, if done right, the level of review it takes to be “ready” for an initial meetings with the supervising attorney, I believe, is more significant than giving a preliminary, shoddy closing and more beneficial to the students in practice. When students repeat as trial team competitors, the quality of the reporting at these initial meetings improved exponentially. I know I can analyze, organize and “brainstorm” a file and my case. We owe it to our students to teach them how to do it as well. I look forward to learning about other approaches for these initial meetings.