Advocacy is Contagious

This piece is by Rafe Foreman, the Douglas Stripp Dean's Distinguished Professor of Law & Director of Advocacy at the University of Missouri Kansas City School of Law

Since my arrival at UMKC I have collaborated with various professors in the doctrinal fields and worked on joint projects. I have worked with Dan Weddle more than most who is the Advanced Writing professor with whom today’s project is directed. Dan teaches many classes from Constitutional Law to writing. He is also keenly interested in the success and experience of each student here at UMKC School of Law. Which makes today’s blog even more thrilling for me to write and play a small role in executing.

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.

Advocacy Translates to Higher Grades!!!

S. Rafe Foreman is the Douglas Stripp Dean's Distinguished Professor and Director of Advocacy at the University of Missouri at Kansas City School of Law and a contributor to this blog.

Advocacy Translates to Higher Grades!!!

You heard me correctly. I teach both a doctrinal course (Evidence) as well as skills or clinical type courses (Trial Advocacy). I am still stinging from the EATS conference where one of my dear colleagues reported that her evidence professor at her law school reported to their faculty that skills courses have ZERO benefit, value or impact. Thankfully our faculty here at UMKC are more enlightened and supportive of our advocacy efforts. Advocacy and Entrepreneurship are the cornerstones of our law school and our Dean Suni and our faculty have long had the vision of experiential learning since the days the nationally famous Jim W. Jeans taught trial advocacy here.

Is it Advocacy Appreciation or Advocacy Skill that we seek? An EATS 2013 forum.

“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we've been waiting for. We are the change that we seek.” 
― Barack Obama

Is it advocacy appreciation or advocacy skill that is a foundation step in 21^st century legal education?  That is the question.

This paper proposes that ‘advocacy appreciation’ ought to be a core element in first year law school programs, but that our trial and appellate advocacy programs should be packaged as part of a litigation stream, with other streams being taken by those students with a more transactional bent. 

There’s a touchstone survey that we advocacy teachers must conduct, a survey of all those trial and appellate judges who take clerks from just graduated law students.  We should be asking those judges how they rate an applicant’s participation in pre-graduate legal skill activities including paralegal work, trial advocacy, and mooting.  Do they distinguish among those activities?  How do those activities rate against such other criteria as law school ranking, academic grades in substantive law subjects, sporting clubs, community activities etc.?

Our target should be the students, not law schools

When Charlie Rose writes about the intertwining of law theory and practise (see here, this blog 1 April 2013), when earnest legal education reformers sign off on lengthy reports that bewail the gap between casebook law classes and the real world, when law firm practice managers complain that their new graduates are bright but useless, they are preaching to the converted and no one else.

There’s no mass law student movement clamouring by petition, or by social media for a more practical legal education.  That’s hardly surprising because so many law schools don’t do anything to show that practise for practice matters.  Moreover, out in that real world of practice, poor problem definition, bad advocacy, inept negotiation, and drafting by precedent- not -understanding are the daily fare.

Illinois State Bar Association Recommends Changes to Legal Education

Recently, the Illinois State Bar Association commissioned a study and released a report (available here) recommending changes to legal education. An ISBA synopsis of the report is available here. As outlined in the ISBA synopsis, the recommended changes include the following, some of which will be of interest to the advocacy teaching community:

The Special Committee made a series of recommendations to mitigate the law school debt crisis and transform legal education to focus on educating lawyers at an affordable price.

• Congress and the Department of Education should place reasonable limits on the amount that law students can borrow from the federal government.
• Rather than allowing all accredited law schools to enroll students receiving federal student loans, Congress should restrict federal loan eligibility to schools whose graduates meet certain employment and debt-repayment outcomes.
• The federal government should ensure that funds available in these programs are targeted to students most in need.
• Law schools must have the ability to experiment with new models of legal education to find the best ways to control costs while still delivering a quality education.
• Law schools themselves must transform their curricula to more emphasis on practice-oriented courses, with greater focus during the second and third years of school on helping students transition to practice through apprenticeships, practical courses and teaching assistantships, rather than the more traditional doctrinal courses. Needed reforms also include changes to law school faculty.

The final recommendation is particularly relevant to advocacy teaching, because advocacy courses already are designed to accomplish this objective. And yet, as some of you know and personally experience, not all law school faculties are receptive to practice-oriented courses or the people who teach them. This has been a periodic topic of discussion at EATS, as I imagine it will be for years to come.

I think the ISBA report is significant because it represents an organized effort by the practicing bar to help shape the nature and future of legal education. I've read the entire report, and although I do not agree with all of it, I cannot dismiss any of it. The report recognizes that a professional education cannot be entirely academic in nature, and it outlines the challenges faced by the graduates and the practicing bar when law students don't obtain the training and skills they need while in law school. At one time, the generally recognized purpose of law school was to teach students to "think like a lawyer," with the expectation that additional skills training could take place after graduation. As we know, law firms and government agencies no longer have the resources or inclination to provide such training.

To underscore the significance of what the ISBA is telling us, our law school hosted our annual Beatty Jurist in Residence this past week. This year's jurist in residence came from Florida's 11th Judicial Circuit in Miami. At a faculty lunch, several of my colleagues asked her about her perception of the readiness of recent law graduates to practice, as compared to when she graduated from law school. Without naming schools, she said there is a clear difference in practice readiness in the graduates of different law schools that appear before her. Some of them know what they're doing: they know how to analyze a case, prepare for court, conduct a trial, and so forth. Some of them, unfortunately, do not. Her message to us, and to our students, was that preparation while still in law school is more important than ever before. She spoke to my criminal law class and advised them to seek out clinics, externships and internships to learn how to be a lawyer, and she cited her own clinical experience in law school as being absolutely critical to her career development.

I found it interesting to consider that the differences from school to school are so apparent, but this matches my own experience when I taught trial advocacy recent to law school graduates at the Army JAG School. There really were differences--and sometimes, very stark ones--from school to school. And truth be told, some of the graduates of the so-called lower-tier schools were much better prepared to actually practice law than their counterparts from more prestigious schools.

Take the time to read the ISBA report (available here), or at least the synposis (available here) , and please feel free to comment about it in the comment section of this blog posting.

Principles of Advocacy Teaching

Some advocacy teachers approach advocacy teaching in the trial order: opening, chief, cross and closing. Case analysis drops in. Others start with closing - because it requires an understanding of the case. Still others take the approach of evidence first, so chief and cross, followed by addresses - opening and closing. Once again, case analysis drops in.

Given that each of these ways leads to some students being excellent there is always enough evidence to support doing the next course, and the next, in the same way. The less successful students just 'don't get it' and are disregarded as being the cause of their inadequacy. Given this natural order of things there hasn't been widely publicised discussion about such questions as, 'what is the approach to teaching advocacy most likely to maximise learning for the participants?'

The relevance of this question is heightened by the increasing use of 'online' teaching and learning materials. Because the usual on line formats lack the motivational, interconnectedness, and spontaneous aspects of good face to face education there needs to be an 'up front' declaration of not only what will be taught but also why it will be taught in a particular order and in a particular manner. Viewers want to know 'the promise' and they want to know 'why the promise comes in this way' and they want both from the start. Just like a good opening statement isn’t it?

What follows are most of the principles that guide my approach to teaching advocacy. I say ‘most’ because I’m bound to overlook some. The purpose of sharing them is to provoke discussion both now on this blog (so please use the COMMENT function or submit your article), and at EATS2013 (22-24 May, Stetson College of Law) about the what and why of best practice advocacy teaching.

These principles reflect my quarter century journey of teaching discovery, a journey marked by my incremental abandonment of nearly everything I was taught both about advocacy and how to teach it.

Principle #1: Practise what you preach. That's hardly novel, but let's rephrase it as: Teaching is an act of persuasion. Advocacy is being persuasive. Teaching advocacy should mirror the techniques of good advocacy. I like to think of advocacy as a trade skill, rather like being a car mechanic. What matters with the problem car is either the ability to fix it - preferred, or failing that, a persuasive reason as to why it can't be fixed. So it is with advocacy: here's how we'll win the case - preferred, or, 'our focus is a dignified, harm minimised exit'. As an advocacy teacher, like the mechanic instructor, I want the students to acquire those 'win well or lose well' skills.

Principle #2: Persuasion meets the emotional wants and the objective needs of the multiple audiences (eg. decision makers, opponents, clients, public gallery). Every politician, advertiser, radio shock jock, religious manipulator, real estate and car retailer, cancer and weight loss scammer, successful trial lawyer, and successful appellate lawyer has some 'intuitive' grasp of this principle and the repeat capacity to act on it. The 'objective needs' have to do with correctly applying the law and 'being seen and heard to do justice'. The emotional wants have to do with showing empathy for victims, as well as dealing with deep- seated prejudices founded in race, gender, sexual preference, religion, and responses to aspects of the advocate's personality.

Principle #3: Advocacy is a blood sport in which performance reflects a combination of the learning from past experience, thorough preparation, and a 'born with' talent to seize the moment at trial. It used to be said that 'good advocates are born not made'. That gave way to the belief that, 'good advocates are made not born'. Common sense, derived from our life experience, tells us that, 'the best advocates are born and made, competent advocates are made, and not everyone has the capacity to be made'. 

Principle #4: Advocacy at trial and on appeal produces a winner and a loser. There are no ties. High-level competition leaves little to chance: preparation requires knowing the opponent’s case along with your own. Those who can’t anticipate the other argument and the contrary facts should stick to being well-informed spectators. Basic advocacy training sorts out those who should do and those who should view.

Principle #5: All sports have rules. Advocacy is a sport so know the rules. Advocacy is a sport so knowledge of the rules is both offensive - to use against the opponent - and defensive - to be able to withstand rule based attacks from the opponent. As with sport the advocacy rules are definitional (cause of action, elements of the criminal charge, procedural, sportscraft ethics) and govern play (evidential rules of relevance and admissibility, advocate's conduct, time between meal breaks etc.). It follows that advocacy students must make mastery of the FRE and/or their State's evidence provisions a high order task both in preparation and performance. My experience is that this is much easier to write here than to achieve as a teacher. Part of the problem is that far too often the teaching of evidence is not tethered to advocacy instruction. This is a strange state of affairs: I can't say that outside of law schools I've met someone who carefully learned the rules of a game but avoided ever playing it or watching others play it.

Principle #6: Every trial and appeal takes place in a real world environment in which being dispassionate is aspirational rather than what happens. Court rooms seem designed to keep the world at bay, by having no windows or dirty windows that when clean allow a limited view of the sky, but the reality is that everyday hopes and fears are part of the baggage that everyone present brings into the court room. The advocate recognises that baggage, co-opting that which is helpful, and doing their best to minimise the effect of that which is unhelpful to their cause.

Principle #7: Be clear that the only way to become skilled is by repeated failure and occasional success. I start my courses by saying that we are on an 'error driven' journey, that by experiencing our and others' errors we can learn an approach that works. 'Do not fear failure', I say, 'Embrace it'. Of course, when I make some beginner's error I can point out that there is never too much practice. Students like it when the teacher stumbles - providing it is not too often.

Principle #8: A teacher who hogs the critique role is failing their students by making them passive observers when they could be active participants. When students critique their peers they must apply what you have taught and they should have learned. Critique is a valuable self-reinforcement. What's more, the steps of being positive, picking a real issue, explaining the problem, and suggesting the fix - all done succinctly and with quiet confidence - mirror an effective technique in closing argument. There is another lasting benefit from requiring the students to critique: many will never be professional advocates but may have to choose such an advocate to run a case. A practised critique skill helps to make a choice that is informed by skill, rather than by friendship or gossip.

Principle #9: There is no substitute for experience in advancing skills learning. Effective student learning requires the active participation and oversight of an advocate who can teach. There’s some current nonsense that you can give students just a bit of teaching and then leave them in their groups to advance. Sure you can leave them in their groups to practise, but you – the teacher with advocacy experience - have to come back time and time again to check that practice on that task is leading to perfection. In order for them to advance the teacher must lead.

Principle #10: The teaching, like the advocacy, must lay a foundation and move incrementally. People learn, and they remember, when the pieces are small, when they can achieve success with the latest small piece, and when they can grasp the whole picture. It follows that the overarching task - be that direct, cross, aligning the facts with the legal issues, etc. - must be broken up by the instructor into a series of progressive steps, each of which is explained, demonstrated, practised and critiqued. 

Principle #11: Keep the facts simple and unchanged while the basic techniques are being learned. Changing the facts is something to be done when the students have acquired some confidence about the form of the question, topic transition, witness control, and organisation of argument. Changing the facts too early is rather like the mechanic instructor discussing hybrids when some in the class are still not sure about the four stroke cycle. I usually use the first verse of the nursery rhyme, ‘Jack and Jill’ as my beginners class script because the students recall it, and the class quickly finds that there are many interpretations of the rhyme – caused mainly by the variable illustrations in the nursery books or on the TV Playschool backdrops. Usefully the verse lends itself to Jill having criminally assaulted Jack, or a civil case for damages founded in negligence, assault, or environmental malfeasance.

Principle #12: Never use a written script with beginners if you have a video clip/live demonstration of the same facts. A written script inevitably leaves much to the imagination. That's very useful when students are more advanced. But, in the early stages, when we are trying to inculcate the virtues of story telling and picture reconstruction into question technique, then a commonly shared video clip, or incident acted out in front of the class, is a better resource. If anyone has one or more clips of ‘Jack and Jill’ please let me know.

Principle #13: A lawyer advocate's craft is to be persuasive with law and fact. It follows that as teachers we must inculcate into every student the invariable first question: 'what is the law?', followed by, "How do the facts that we know fit around those legal requirements?'. For me the answer to the question, ' What is the first advocacy topic?' is 'case analysis'. Until that is done there is a lack of common attitudes held by teacher and students. When it is done then there is the framework upon which the questioning, objecting and address skills can be built.

Principle #14: Good case analysis moves seamlessly from preparation to court room. It is inefficient to do twice what can be done well once. Linear and matrix approaches to case analysis fail this requirement. That’s not surprising because they inherently lack the capacity to respond flexibly to the inevitable changing environment of a trial or appeal. I have found that randomised ‘mind map’ approaches, using a white board rather than an Eapplication, work best. The use of large white board on which issues and facts can be shown, along with possible connections among them, and prioritisation for the order in which to present them at the hearing, draws in the students, has them involved, and leads to a clear ‘in court’ presentation plan.

Principle #15: Experience teaches that there are some advocacy bad habits that are almost universal. Such habits need to be dealt with immediately and firmly before they become entrenched. Some examples are: speaking too quickly, no pauses to allow the audience and the advocate to reflect, not listening to the answer, asking questions that begin with any of, “could you, would you, can you, did, does, I put it to you, I’d like to ask you”, anxiety twitches, swaying. Because there are bound to be a number of offenders in any class it is easy to make the eradication exercise a game. The usual sequence is: student makes error, instructor points out error, student understands, student tries again and repeats the error, class laughs, student tries again and catches themselves making the error. Student is now on the road to recovery.

Principle #16: Dealing with student ‘push back’ is a test both of your advocacy and teaching skills and the student’s advocacy potential and learning skills. Students like jurors come to us with more secrets than we can ever know. They do and say things for reasons beyond our grasp. Responding to ‘push back’ is similar to responding to the judge at trial or on appeal who is against you for good or bad reasons. We have to demonstrate listening, self-control, masking, and content rich answering skills. And in those cases where there is no way other than the ‘put down’ to deal with a repeat offender then the barb has – like the cross indoctrination retort – to be a thing of fatal beauty.

Hugh Selby © October 2012.

The Advocacy Experience at the Criminal Appeals Clinic, University of Mississippi School of Law

The National Center for Justice & the Rule of Law (NCJRL) (http://www.olemiss.edu/depts/ncjrl/index.html) was created at the University of Mississippi School of Law in 2001 by a Department of Justice training grant.

The primary focus of the NCJRL has been to provide educational opportunities in the highly-specialized practice of criminal law for judges, lawyers, and law students. The Criminal Appeals Program and the Prosecutorial Externship Program was established by the NCJRL as a part of the regular curriculum at the law school with the goal of offering students a concentration of study in criminal law and procedure.

The Criminal Appeals Clinic (CAC) provides a “live-client” appellate training program designed to instruct third-year law students in effective methods of issue identification, research, and brief-writing and, at the same time, offering the students the opportunity for direct participation in the pro bono representation of an indigent person awaiting review of their cases on appeal by the Mississippi appellate courts.

Along with the general clinical skills aspect of the CAC, the classroom component of the course also seeks to instruct the student on the fundamentals of criminal appellate practice, including the review of trial transcripts and record documents, the identification and evaluation of legal, procedural, and constitutional issues; the efficient use of research applications for the issues chosen for the brief; advanced instruction on the “fact-centered” method of brief-writing; and employment of “mega-editing” techniques to polish and refine the final work product.

Students participating in the program are: appointed a case partner; admitted to the limited practice of law; specially appointed to directly represent the client in the Supreme Court under the supervision of the clinical professor; and co-sign the Brief of the Appellant as an attorney of record in the case. In addition to the classroom component, each case team receives at least two hours per week of “one-on-one” clinical supervision in the drafting, editing, and revision of each section of the brief.

Since 2002, the CAC has provided this advanced training to more than 120 third-year law students who have represented indigent clients in more than 70 cases, and obtaining 12 case reversals or adoption by the Court of their position in amicus briefs.

A request is filed in each of the clinic’s cases to give the students the experience of participating in oral arguments before the Court in another case filed from the previous semester. Because of the generous cooperation of the Mississippi appellate courts, the Criminal Appeals Clinic routinely receives two or three grants of oral argument each semester. To date, over 30 oral arguments have been delivered by the student/lawyers participating in the program. (Link to the CAC’s oral argument videos posted online in the Mississippi Supreme Court archives: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_oralargumentvideos.html).

The CAC student/lawyers have won significant, gratifying, and precedent-setting reversals for their clients (http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_decisions.html), including the following cases:

James C. Newell, Jr. v. State was reversed for a new trial on grounds that “[t]he trial court committed reversible error in its evidentiary rulings [admission of a toxicology report] and in refusing Newell’s requested jury instructions on the newly revised statutory presumption under the ‘Castle Doctrine.’ . . .We hold that the jury should have been instructed that, if it believed Newell’s version of the events surrounding his altercation with Boyette, then it should presume that Newell used defensive force against Boyette because he ‘reasonably feared imminent death or great bodily harm, or the commission of a felony upon him . . . or against the vehicle which he was occupying.’ So the refusal of instruction D-22 necessitates a new trial.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO64409.pdf

Vincent Carnell Hudson v. State was reversed and rendered on grounds that “[t]his certiorari review arises from Vincent Hudson’s conviction of possession of a ‘trace’ amount of cocaine found in his clothes. Because the evidence introduced at trial was insufficient to show that he knew the cocaine was present and that he consciously and intentionally had possessed it, we reverse and render the imposition upon him of a life sentence without the possibility of parole. Because the State did not prove beyond a reasonable doubt that Vincent Hudson was aware of the presence and character of the ‘trace’ amount of cocaine in his pockets, or that he consciously and intentionally possessed it, the evidence put forth at trial was insufficient to support his conviction for possession of the cocaine. Therefore, we reverse the Court of Appeals and reverse and render Hudson’s conviction and [life] sentence and order him discharged.” Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO61747.pdf

On August 11, 2005, the Mississippi Supreme Court reversed Ardes Johnson v. State, remanding it for a new trial on grounds that two instructions on self-defense and “pre-arming” did not correctly state the law to the jury for their deliberations. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/HDList/..%5COPINIONS%5CCO27989.PDF On the second appeal after re-trial on the original charge of murder, the Mississippi Supreme Court reversed and rendered his life sentence on July 31, 2008, thereby discharging him from prison, holding that the Appellant had conclusively established he acted in necessary self-defense in the killing under the Weathersby rule, a “longstanding, seldom-applied, legal doctrine. . .” Link to the opinion: http://www.mssc.state.ms.us/Images/HDList/..%5COpinions%5CCO49972.pdf

Tabitha Miller v. State was reversed and remanded for a new trial on grounds that her self-defense theory of the case involving the numerous prior instances of domestic abuse committed against her by the deceased was not allowed to be fully presented to the jury through the testimony of police officers, thereby depriving her of a fair trial. Link to the opinion of the Court: http://www.mssc.state.ms.us/Images/Opinions/CO41430.pdf

After attending the May 2011 conference of law teachers and trial coaches at Stetson University College of Law’s Center for Excellence in Advocacy, the “what, how, and why” method of specific critique of the student’s performance and Joshua Karton’s exercises designed to improve the style of delivery in advocacy training will be incorporated into future CAC oral argument preparations. As a capstone educational experience, the Criminal Appeals Clinic offers students the opportunity to serve as advocates on the written page and in the argument chamber, bringing “real world” opportunities to represent actual clients in difficult cases even before they graduate from law school.

This article was contributed by Phil Broadhead who is the Clinical Professor and Director of the Criminal Appeals at Ole Miss law school. Phil can be contacted at:

THE UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW
NAT'L CTR FOR JUSTICE & THE RULE OF LAW
POST OFFICE BOX 1848
3071 ROBERT C. KHAYAT LAW CENTER
UNIVERSITY, MS 38677
EMAIL: pwb@olemiss.edu - Web Page: http://www.olemiss.edu/depts/ncjrl/CriminalAppeals/cac_gi.html
OFFICE PHONE: 662.915.5560

The what, why and how of our advocacy teaching

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I am yet to meet a colleague who decided early that their career was to be an advocacy teacher and who then single-mindedly achieved their ambition. 

Rather my teaching colleagues have arrived by accident, by way of routes such as: ‘You’re teaching procedure, evidence and criminal, so why not add the advocacy as we’re got no one’, ‘Remember that time over drinks when you said you’d be willing to help out as an adjunct, well we need you tomorrow’,  ‘Look, you’re one of our better known alumni, you’ll have plenty of time after you retire from the court next week, so come aboard and share your wisdom’, and, ‘Liked what you did on your feet today, so how about coming to help me with this trial team and, if you like it, we’ll get you along to teacher training’.

Once snared so many of us stick around, often for years, sometimes for decades.  Why? Isn’t it a mix of pride in seeing future advocates mastering basic skills, a sense of willing obligation to hand on ‘professional’ standards, and the immediate ‘feel good’ rewards that we get when the students grin with new found communication power?

The accidental way in which we enter the field and the immediate and repeated ‘rewards’ may explain the dearth of discussion about our approach to teaching:  what we should teach, why, how, etc.?  We come into established courses, the reasons for their content and order lost in time.  We use a case file because we’re told it’s good. We attend and enjoy a NITA or similar ‘train the trainers’ session and feel that there is now light upon the dark spaces of teaching and learning.

All of that is worthwhile but in this age of ‘where’s the proof that your methods are effective and efficient?’ we’re not much beyond the snake oil peddlers.

‘Too hard, steady on, don't attack my bona fides as (one or more of) an experienced advocate, judge, legal academic’. OK, try to write a reasoned, evidence based paragraph about why you start your advocacy training the way that you do.  Done that?  By the way, ‘evidence based’ means what it says.  Your and my ad hoc memories and assumptions from practice do not constitute reliable evidence as the data set is far too small.  Perhaps you need to rewrite that paragraph? Now consider whether and how you actively shared what you have just written down with your current or last class.

Over the past twenty years I’ve gradually jettisoned pretty much everything that my well-intentioned early mentors told me about advocacy training.  Experience with many groups of students (large and small, novice and experienced, adversarial and inquisitorial domains), demonstrated over and over again that the ‘standard’ approaches too often didn’t work beyond the student experience. Sure they gave the students the ‘holiday cruise’ effect of feeling terrific in the immediate aftermath; however, the skills were just icing and the cake was hollow. That was all too obvious when watching them in ‘real’ courts in the months or years after their training. [I concede that an explanation is that I am a lousy teacher, and that any good teacher would not have such an experience; however, I’ve seen the ‘in court’ results of others’ teaching and so they too are lousy.]

The consequences of unsuccessful teaching (and such teaching may be enthusiastic and engaging, just as it may be deadly boring) are not the same for black letter law subjects and practitioner skills. There’s a fundamental difference between applying ‘substantive law’ and ‘practising good advocacy’.  In the former, assuming that at least problem identification is learnt, then the indifferent student, now practitioner, can find the answer by research. They can ask around, go on the web, visit the library and all will be well. But in the latter there is no substitute for the hard yards of real skill acquisition through the repeated combination of informed effort and talent. Good advocacy takes a lot of effort, a commitment of time that is expected of serious sports people, and therefore is quite unlike the, ‘I’ll cram today and tonight for tomorrow’s exam’.

The necessary effort reflects opportunity, efficient and effective skilled instruction, consistent motivation, and acquiring the ability to self reflect and so self improve.  For an image that captures the ideal see the Grecian discus- thrower at  http://en.wikipedia.org/wiki/Discobolus   We see, still mesmerising after a couple of thousand years, the achievements of both player and sculptor, reflecting total commitment by each to the performance.

If a student asks me, ‘What is the aim of direct examination?’ my fantasy answer is to achieve as an advocate with the witness what that sculptor achieved with that discus-thrower.

That’s the ideal but what about reality?  How much ‘deep learning’ (that is, learning that will be recalled and applied well after the end of the course) is achievable for the average student in a one semester course with 3 hours of class contact per week?  How much more is achievable with the highly motivated trial competition team members, bearing in mind though that the focus for such a team is not broad skills but the specific requirements of the competition case files?  The competition rules, for example, limit the players to the information contained within the script.  That limitation does not marry with real life practice so that the competition focused advocate is missing out on a significant part of ‘advocacy in the real world’ where going beyond the script to make use of the audiences’ life experiences is one of the hallmarks of real persuasive skill.

So what training method or methods will achieve that ‘deep learning’? Are any of our readers sitting on some unpublished research that will help to answer this question?  Are any of our readers proposing such research and looking for one or more other readers, who happen to be advocacy teachers, to share in the project?  Is there an unpublished survey of former advocacy students that asks about the extent to which, as frequent or infrequent advocates, they apply and reflect upon what we taught them? Did we miss something that they really needed and had to find out about through trial and error?

If we take any one of the advocacy skills, how should that skill be broken up so that the student understands what they are trying to master?  Yes, there are building blocks, but are they the right size, or overly broad, or overly narrow for the best teaching and learning? The fact that something makes a lot of sense to a person who already ‘understands’ does not mean that the learner likewise sees the explanation as clear.

Another unknown is the best order in which to teach these skills.  Some people say start with direct, others say to start with the closing, yet others prefer to start at the beginning, while others again like to start with case analysis.  I start with where my student audience is at.  That means I have different starting points for a high school mock trial team (who have not studied law) and a later year law student group (who are saturated with legal principles).  With the high school group I start with cross because the initial burst of excitement will get us over the ‘dry’ law stuff. With the law students I will probably start with case analysis because it takes their law out of the classroom and into the world. With a group of practitioners it’s necessary to gently inquire about what they now do for preparation and performance, listen to the answers, and fashion the teaching entry point to reflect the best connection to where they are at.

Readers who follow NITA will know that they are celebrating longevity this year. [See their hyper link in the right column of this blog.]Many of us owe much to our NITA experiences, both as students and teachers.  NITA has had to adapt to the times. Programs are now shorter than they used to be. As with university teaching there is, or will be, more ‘on line’ material and less face to face. 

As advocacy teachers in a fast changing world we need to be sure that what we teach, why we teach it, and how we teach it are ‘evidence based’.  Otherwise we may find that we’re surplus to requirements, that ‘our’ job will be done by the brassy but ignorant. Given what the community (which includes our students, clients, witnesses and jurors) sees on TV as ‘court room drama’ there is a terrible risk that no one will notice the difference.

Hugh Selby ©  June, 2011

Why Advocacy Education Matters

I'm including a link (available here) to a current news story about a young advocate whose trial performance was so inept that the judge declared a mistrial.

As John Baker, president of NITA, said in a recent post (available here)--advocates need training now more than ever. The burden is increasingly shifting from law firms and government agencies to law schools. When you read the article I've linked, scroll down to the bottom of the article and glance through the comments. Setting aside the predictable vitriol against this young man, many comments focus on . . . you guessed it, the quality of the legal education he received. I have no idea whether or not this young advocate took trial advocacy in law school, but from the description of his opening statement, my guess is that he did not--or if he did, he chose to ignore whatever he was taught.

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.

Advocates (students and practitioners) Need Training More Than Ever

The following piece is by John Baker, President of the National Institute of Trial Advocacy

I have been reading the Advocacy Teaching Blog since last year, but have never commented. Chris asked if I could talk a bit about NITA's view on the January/February blog topic of "Advocacy Across the Curriculum."

Introduction:

Three key forces converged within the legal system over the last three years, some say over the last 30 years. The convergence resulted in a "perfect storm" for the American legal system and the American legal profession.

These three forces converging include; 1) economic stress on law firms and lawyers, which decreases or eliminates skills training and professional development; 2) federal, state, and local government budget cuts, which decreases or eliminates skills training and professional development for public service lawyers; and 3) renewed calls from the courts concerning the lack of skills training for the lawyers appearing in courtrooms and arbitration conference rooms.

Symptoms of this perfect storm include a precipitous fall-off in the level of professionalism of communication skills, and of ethical conduct by trial lawyers appearing in state and federal courts throughout the United States. It also includes a lack of trial skills in those who have not taken advocacy courses in law school. Translated - lawyers need training more than ever! They need a good base of training before they graduate from your law schools. And, they need continuing training ("booster shots") once they get into practice, especially if they don't have the opportunity to keep their advocacy skills sharp.

History Revisited?

Have we seen these storm clouds in the past? This decrease in "lawyering skills" looks suspiciously similar to what Chief Justice Warren Burger saw in the late 1960s, when he challenged the legal profession to improve the level of skill of trial lawyers appearing in state and federal courtrooms. In response to Justice Burger's challenge bar associations and other lawyer organizations embarked on the creation of advocacy skills training programs for practicing lawyers.

One such training organization is the National Institute for Trial Advocacy (NITA,) which I am happy to say I am privileged to be currently leading. In July of 1972 NITA staged its first learning by doing National Session in Boulder, Colorado. Over the last 40 years this NITA "learning by doing" method has been adopted by trial lawyers associations, by bar associations, by law firms, and happily by law schools.

The Need For Training Has Grown Exponentially

Despite forty years of all of these organizations training lawyers in advocacy skills, the need grows. Despite the expansion of expanding curriculums to include deposition advocacy, motions argument, and skills for other settings outside of the courtroom, the need still grows. Despite high profile studies and reports by prestigious academic and legal institutions (the "McCrate Report" from the American Bar Association Section on Legal Education & Admission to the Bar and the Carnegie Foundation report, "Educating Lawyers: Preparation for the Profession of Law") the need still grows.

Aggravation of the Problem:

Growth of this need has been aggravated by economic changes over the years and the ever expanding population of lawyers. Law schools continue to graduate lawyers in large numbers. Fewer dollars are available to train the lawyers in the private and public sectors. Government training money has dried up progressively over the last 40 years. The media headlines last fall and in 2011 paint a picture of even less government funding for federal, state, and local public service lawyers. The Legal Service Corporation budget may be cut another 11%, following the 2008 devastating cuts. (See http://www.prnewswire.com/news-releases/proposed-75-million-budget-cut-would-devastate-legal-aid-to-poor-115668409.html )

Law firms, large and small, have carried a large part of the load of training the law graduates in advocacy and communication skills for years. (See NITA White paper, available here). The 2009 economic downturn has reduced the resources and money available to law firm professional development programs to continue to provide enough training. Though clients are demanding better trained lawyers, firms can no longer find adequate funding to send their young lawyers to NITA or other skills training programs or to provide training in their own in-house programs.

Some Solutions

Programs for Practicing Lawyers. Creative solutions are needed. For the practicing lawyers, who need the training, NITA, trial lawyers associations, bar associations, and law firms will need to provide the skills training programs as economically as possible. The scope of training will need to encompass more than courtroom skills. Though courtroom communication skills are transferable to skills used in pretrial settings, post-trial settings, and depositions, advocacy training organizations need to acknowledge that fewer trials may require trainings to focus on the other advocacy settings for their training sessions.

Easily accessible and convenient training sessions are needed. Whether this means smaller outreach programs in geographically diverse locations or providing some of the programming online or electronically, all of us advocacy teachers must be prepared to think outside of the box. Public service lawyers will need scholarships or assistance, no matter the delivery system of the programs.

Law School Advocacy Training. The law schools may be the key to providing basic training to students before they graduate. Advocacy training needs to be expanded both in content (adding communication skills for transactional lawyer) and in volume (more sections of skills training.) At NITA we are seeing evidence that some law schools recognize the needs of lawyers as outlined in the Carnegie (available here) and MacCrate guidelines (available here). Participants in this blog share efforts they are making to expand the advocacy training efforts at their schools. Some are expanding their advocacy skills training curricula. For example, next month as a pilot project the University of Pennsylvania Law School has partnered with NITA to have NITA faculty present a week-long intensive "deposition through trial" skills training program for students during spring break. This intensive course takes the best of the training techniques NITA has developed in our public and custom programs and applies them in the law school setting. Other schools, including the University of Denver Sturm College of Law, are seeking ways to bring real life learning to substantive classes.

Plenty of Work Ahead for All Teachers

Just as Justice Burger saw in the 1970's there is plenty of need. Plenty of work to do! Despite limited resources lawyers still need training. The training may come in different packages. The training may be delivered differently. The training may focus on additional skills to the traditional trial skills training. No matter how the training changes, it is clear from the last 40 years, to keep up with this continuing urgent need for advocacy training the legal profession, legal organizations, and the law schools need to work together. Instead of viewing each other as competitors, we all need to work as partners to fulfill this enormous and growing need.

 

John T. Baker

E-mail: jbaker@nita.org

 

Advocacy Across the Curriculum: Integrating Team-Based Learning and Application Exercises in an Evidence Class

In keeping with the blog theme for January-February of Advocacy Across the Curriculum, I've decided to continue the discussion on advocacy teaching across the curriculum and write about an experiment with team-based learning and advocacy application exercises in my evidence class this semester.

Let me first express some disagreement with some of the more cynical views expressed by my good friend Hugh Selby in an earlier post (available here) about the future of skills training in law schools. I think Hugh is right about the resistance of the law school professoriate to experiential learning and skills training. The current focus of many faculty members is scholarship. This confers a benefit on students because their professors are intellectually engaged with the larger legal and academic community. But, as Brent Evan Newton points out in a forthcoming piece in the South Carolina Law review (abstract available here; previously mentioned in this blog here), there may be a problem if law school faculties focus on theoretical scholarship to the exclusion of experiential learning and training. Faculties with little or no practice experience may be too disconnected from the bench and bar to prepare graduates for the practice of law.

It seems to me that we might well see greater demand for experiential learning and skills training in law schools in the very near future. The MacCrate report (now dated, but still valid, link here), Carnegie report (link here), proposed ABA standards on outcome-based learning (discussed here, here and here, NITA's white paper on law schools (here), the shifting business model for law firm that leaves fewer resources for training new associates—all suggest to me that the future may be just a little brighter than Hugh suggests. Of course, five or ten years from now, I could be proven wrong and join Hugh in his cynicism, but for now I am optimistic.

For now, I've decided to integrate advocacy training into my doctrinal classes to the extent that it's appropriate. I have my criminal law students give opening statements, for example. I include courtroom advocacy exercises in my evidence classes. I also teach classes where this sort of thing doesn't work. For instance, in my military law seminar, which is a theoretical "paper class" there's no skills-training, nor have I included any in the international criminal law class I occasionally teach.

Personally, I think the integrated advocacy training is paying off. I've been pleased with the flexibility and adaptability that I've seen from students who have had to actually apply evidence principles in courtroom exercises as part of the basic evidence course.

Before this semester kicked off, I looked at my evidence course to see how I could more effectively integrate my application exercises. The biggest problem I had noticed was that, to save myself the work of making individual assignments, I had asked all the students to be prepared to play all the roles in any given advocacy exercise: counsel for both sides, witnesses, or judge. I found that the students tried hard, but were not quite as focused as I wanted them to be.

Luckily for me, at about the same time I was reassessing my evidence course, our law school hosted a teaching forum on team-based learning, taught by Barbara Glesner Fines of UMKC. This revolutionized my application exercises. My class is now divided into 5-person teams. Each class session, several teams are assigned to prepare for the application exercises. They are responsible to figure out who will play which roles for the day's exercise. They work together to produce a plan for the application exercise. When I call on a team, they have already decided who will do what. They've also frequently coordinated a script that, if not entirely correct, at least gives me something to work on them with during class. Sometimes I mix and match teams (I might use one team for advocates and another for witnesses, for example), but there has been no problem doing this because the overall level of preparation is so much better.

The team-based learning principles have given me a way to help the class elevate its learning. First, as frequently happens in an actual litigation setting, the students are working and preparing in teams. Second, they are able to pool their resources and create a better integrated product than the fragmented individual efforts before. Third, they come into class with an advocacy plan and try to execute it—which is quite similar to what we want them to do in the courtroom. Overall, I feel that the learning experience has improved by integrating team-based learning with advocacy application exercises in a doctrinal class.

Teaching ‘Advocacy’ [aka persuasive communication] across the Law Curriculum.

They say that, “hope springs eternal”, that “ what goes around comes around”, that “ there is nothing new under the sun”. How true those remarks ring when someone, anyone, starts talking about advocacy within the wider law curriculum.

That campaign was lost when the profession handed over the teaching of law to academics, those being a class of people for whom ‘advocacy’ is a mere skill, something less than an intellectual challenge.

Sure there are teachers who bring ‘advocacy perspectives’ into teaching evidence, procedure, criminal law. And sure there are students who find that exciting, but it’s not mainstream. There is not, and will not be, any majoritarian push by law academics to build their substantive law courses around the structure of a litigation case file. Why not? Because, in case you hadn’t noticed, most academics are not fighting with the spoken word in public places. Their battles take place in journals and competing text-books. Incremental success is seen in the changing perspectives to be read in successive volumes and editions. By contrast litigators revel in public, speaking combat.

Hence to propose to one’s academic colleagues that there be more advocacy across the curriculum is a form of career stunting. Your career may not wither, but it will not flourish and the fruit will be sparse.

There is, however, another way, an approach more likely to bring success and one that uses all those skills that we bring to advocacy training.

Every good advocate understands that ‘manipulation’ is art not trash. Let us not fail because of mere antipathy to a word. Replace ‘advocacy’ with ‘persuasive communication’ and every ambitious academic is interested. From among all those articles submitted to the top category journals they want theirs to be chosen. You can help.

That quest is more likely to succeed if they apply the generic basics of our craft: what are the needs and wants of their target ‘commissioning editor’ audience? Are the aims of their article clear and of interest to that audience? Have they adroitly prioritised and melded the issues of law and fact that are the foundation substance of their article? Have they anticipated what the opposition will assert? And, that done, have they refuted or minimised its strength? Are their citations from appropriate sources and used in the right places? Do they draw conclusions that flow from the facts and the law, are compelling, succinct and memorable?

Those academics who are drawn to ‘empirical research’ must venture into the dangerous realm of talking to people, getting those targets to give up facts and opinions. There’s a skill to doing that – whether it is designing a questionnaire, planning an interview, or obtaining ethics approval. The basics of that skill are the generic aspects of the questioning skills that we teach: knowing the topics, settling the interviewee, asking the right mix of open, closed and ‘in-between’ questions, use of repetition, facility with listening, topic transfers, encouraging the story, and so on. Don’t call it direct, cross, or redirect. Call it, ‘collecting comprehensive, relevant, reliable data’. Now re-read Judge Habas’ two articles on jury selection and see the links between what she is explaining and any half way credible empirical research project.

So, how to get academics to relish this approach? In this age of ‘every member of faculty must have this and that role’ all advocacy teachers must volunteer to wear the hat of ‘Publishing Facilitator’. Each semester there must be one or two ‘brown bag’ lunches at which the ‘Publishing Facilitator’ chats knowledgeably about the checklist that every academic must tick off as they plan their research, as they draft their article, and before they submit the final version for publication. The ‘Publishing Facilitator’ must collect intelligence about the ‘needs and wants’ of the favoured journals and share it with colleagues on a ‘need to know’ basis and also on a ‘how can I advance my own career by careful favouritism?’

Another aspect of being an advocate, one quite unnoticed by academics, is prowess in juggling. Ideas, facts, cases, propositions – they must all be known, but they move in space and time, sometimes to the foreground, sometimes in the rear, until the magic of closing brings the cement. It’s that juggling which allows the advocacy teacher and publishing facilitator to seize the chance and volunteer to co-ordinate the teaching of ‘research skills’. Get somebody else to teach the nitty gritty of how to research. That done, run a class or two on how to prepare, draft and write essays and exam answers. Surprise – the very same skills used as publishing facilitator come out again, albeit with some different names.

And now look at what has been achieved? You, oh blighted advocacy instructor, have become indispensable. Your skills in teaching ‘persuasive communication’ have permeated your school, reaching across teachers and students. They have been infected with ‘advocacy’ without knowing it. Wonderful what can be done with a little manipulation, or ‘marketing’ for those who prefer to be a touch coy.

[This essay records the advice of Odysseus and the soldier Siron given to the writer in a recent dream.]

Hugh Selby © January 2011.

Teaching Advocacy Across the Curriculum

Not long ago, Hugh Selby suggested that one way to encourage guest blogging would be to select a "Topic of the Month" that might help stimulate thought and discussion. With a new law school semester just around the corner, this month's topic is Teaching Advocacy Across the Curriculum.

Many readers of this blog teach trial advocacy courses in law schools, either as full-time or adjunct faculty members. And of that group, many teach additional courses as well. For example, I teach first-year criminal law, evidence, and a military law seminar.

There are many opportunities to help teach students advocacy skills in a traditional "doctrinal" legal course. Successfully doing so requires advance planning and a commitment to creating learning opportunities that go beyond the Paper Chase-type moments where we flay students alive with unanswerable questions using the Socratic method. The rewards, however, are well worth it: students enjoy class more, they understand difficult legal concepts better in the context of making trial and appellate arguments, and they develop an interest in advocacy they might not otherwise have had.

Over the years, I've had wonderful colleagues and mentors who have shown me the possibilities in this method of teaching. When I taught at the Army JAG School, then-Lieutenant Colonels James Garrett and Patricia Ham directed a curricular overhaul of our basic criminal law course for newly minted military attorneys. I became intimately familiar with the process as the project officer assigned to design the plan. Lieutenant Colonel Garrett gave me just one piece of guidance initially: figure out what you want the students to know, and what you want them to be able to do, and then restructure the curriculum according to that. Lieutenant Colonel Ham, his successor (the process took about two years to implement), directed me to use an actual case file as the structure for the course. We called it Anatomy of a Court-Martial, and we tied all substantive instruction to the various phases of a court-martial. For example, a class on pretrial confinement procedures would be tied to an actual pretrial confinement hearing. The course ended with the students trying the case they'd been working on for the previous several weeks.

The revamped course was successful far beyond our initial expectations. For the first time, the students were able to tie the complex doctrines and procedures of a court-martial to an actual case. They understood in context, not just theory, and it improved both their skills and their grasp of the theories.

When I left the military and started teaching at Southern Illinois University School of Law, I found tremendous support for including advocacy teaching in my doctrinal classes. In fact, my dean and mentor, Peter Alexander, had been doing innovative things in this area for years. He'll be writing a post this month on the mini-trials based on children's fairy tales that he integrates into his evidence class.

So--what are some things I do? When we begin a new case in my first-year criminal law class, the student I call on must give an opening statement for the prosecution, beginning with the words, "ladies and gentlemen of the jury." I then call on another student to give an opening statement for the defense. Only then do we begin a more traditional discussion of the case.

In my evidence class, every rule and concept includes an application exercise in which the students perform a courtroom task appropriate to that rule of evidence. They draft jury instructions, argue motions, conduct examinations and make objections. I have students play the roles of counsel and the judge, and the entire class serves as a court of appeals. This approach has worked well for me, and it forms the underlying structure of my forthcoming evidence textbook, Evidence and the Advocate: A Contextual Approach to Learning Evidence, which will be published by Lexis later this year.

I firmly believe that integrating advocacy training in a doctrinal class confers a great benefit on the students.

So--this is a guest-blogging topic for the month. If you do similar things, please blog about them. If you disagree with the approach, write a blog post and let us know.