Country Music and Storytelling: A Fun Advocacy Exercise

Last May, I took two long road trips within a few weeks of each other. I enjoy road trips and always have, whether I travel alone or with family and friends. I get to visit new places, listen to music for hours at a time, and think great thoughts as the miles roll by. These two trips were particularly meaningul to me: the first was to help teach an advanced trial advocacy course with my dear friend Joshua Karton at the Air Force JAG School in Montgomery, Alabama; the second was to attend the annual EATS conference at Stetson. Both of these events helped recharge a badly-depleted set of creative batteries, gave me new ideas for the upcoming academic year, and inspired me to want to be a better advocate and teacher.

To and from each of these destinations (nine hours each way to Montgomery; fifteen each way to Gulfport) I listened to a lot of country music. While it is easy to find country music on the radio in the American South, and difficult, sometimes, to find other musical genres, this was all by choice for me. I created an old-time country music station on Pandora, and that is primarily what I listened to. 

It occurred to me as I was listening that stories are one of the main reasons I enjoy this particular era and genre of music. Who could listen to Johnny Cash sing Folsom Prison Blues and not feel compassion for the imprisoned murderer whose story the song tells? Or not be nearly shattered emotionally by the lines—“And I’d trade all my tomorrows for one single yesterday/ holding Bobby’s body next to mine?”—from Me and Bobby McGee (whether sung by its author, country musician Kris Kristofferson, or by folk singer Janis Joplin, it’s an amazing song).

Be a Good Advocate. Stop Talking and Listen

Most short duration advocacy courses (and I suspect many College semester long ‘Trial Advocacy’ programs) focus on opening statements, closing arguments and witness examination.  It is all about the talking.  Sure, to be an effective talker there must be solid case analysis.  Any good witness examination means we are paying attention to the answers.

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.

An Early Exercise in Trial Ad: Advocacy Personality Presentations

Another blog post from Wes Porter of Golden Gate University.

 

What is the "most productive" early exercise in trial advocacy? Through experimentation, I think I may have found it.  Let's call it "Advocacy Personality Presentations."

 

What do I mean by "most productive"?  First, like many other early exercises, this exercise has to familiarize the students with one another, promote team building and build a safe classroom environment for experimentation, constructive critique, collaborative learning and individual development.  Second, this new exercise has to emphasize the foundational advocacy skills of story-telling and persuasion.  Third, it has to introduce the power of story-telling through jury address and questions and answers.  Lastly, the exercise had to be overtly upbeat and positive –to infuse individualized confidence early in the course. 

 

What are "Advocacy Personality Presentations"?

 

I read a quote recently that most lawyers – whether trial lawyers or not – spend their careers making professional presentations.  Courses like trial advocacy are so important, because all of our students must consider how their personality traits can serve them well, not only as a future trial attorney, but during any professional presentation as a lawyer.    

 

Tearing down the image of the "typical trial advocate."  In my view, Advocacy Personality Presentations touch upon all of the objectives above in a simple, streamlined manner.  I introduce the exercise by attacking the image of a typical trial attorney –a silver-tongued, experienced advocate in a fancy suit with a library's worth of law at his or her immediate recall.  I explain that there is no "typical trial attorney."  Each student should begin to see himself or herself as a capable and effective trial attorney. 

 

Finding our own advocacy personality.  After chipping away at this notion of a "typical trial attorney," I suggest that the students must start on the path to finding their own "advocacy personalities".  I note that my personality as the professor will not work for most students in terms of their advocacy or courtroom personality, because I know that if I do not say this, it may be the one they try all too hard to emulate.  We must communicate how many trial attorneys succeed with wide and varied "personalities" that prove effective in court.  This exercise begins to explore the students' vision of how they will be successful in court. 

 

Part I of the Exercise – the Interview.  Pair students up who do not know one another well – either during class or in preparation for presentations for the following class.  One student, the presenter, must interview another student, the subject, in search of personality characteristics and traits that could bring their classmate success in the courtroom.  The presenter must aim to uncover facts, examples and stories that illustrate the subject's personality trait, as opposed to merely saying it to the jury (i.e. the presenter should not plainly recite how "Jonny relates well to people he meets"; instead she should introduce the audience to Jonny so they understand and appreciate how Jonny relates well to new people).  Stress to the students that it is the presenter who conducts the interview, decides the personality trait(s) to feature, and then organizes the presentation.

 

I recently began asking the entire class to write down on an index card in the first class their own personality traits that they believe will bring them success as a trial attorney.  It is often interesting to compare and contrast one's self image with the presentation's portrait.       

 

Part II of the Exercise – the Presentation.  Once armed with the material gathered during the interview, the presenter must consider the best way to persuade the audience that their view of their subject's personality trait will prove effective in the courtroom at trial.  I typically set aside 5 minutes per presentation.

 

There are only TWO rules for the presentations. The presenter must: Use some combination of question and answer with the subject and jury address (that is, the presenter may speak directly to the jury first and then introduce the subject through witness examination; or, the presenter may introduce the subject through witness examination and then argue to the jury in summation).     Be interesting – one of my mentors once told me: "You have no constitutional right to be boring."

 

True to my goals for being the "best" early exercise in trial advocacy, this exercise allows students to familiarize themselves with one another, promotes team-building, builds a safe environment for experimentation and plants the seeds for skills in story-telling and persuasion. It allows the instructor to discuss and critique presentations in terms of presentation-style distractions, persuasion, open-ended versus leading questions, positioning in the courtroom, connection between witness examinations and jury addresses, and much more.  The exercise is positive because the focus remains on the liberating and inspiring message that "we can all be good at this – in our own way."

 

Sit back and enjoy students attempting to persuade the jury (the entire class) about the advocacy personality of their subjects and classmates. The students inevitably will present a wide array of characteristics that will bring their classmates success in the courtroom.

 

Wes Porter

 wporter@ggu.edu

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Jack and Jill, the true story.

Fingers crossed that this piece on’ Jack and Jill’ gets better reviews than Adam Sandler’s latest movie with that name.

This good old nursery rhyme has been a quick and easy filler item in many advocacy courses, usually to introduce direct examination.　 First the instructor talks about open questions and avoiding questions that lead on an issue or lack proper foundation. 　Then the class is asked to elicit the story of Jack and Jill by having each student in turn ask the instructor (who saw and heard the whole awful incident) an appropriate open question that includes one of who, why, when, where, what, how.

Once the story is extracted the rhyme is put aside and forgotten, never to be used again with those students.　 That’s a mistake.　 And that’s why this post is all about taking the Jack and Jill story from filler to mainstream course content.　 My colleague Graeme Blank and I used it for all the following purposes just last week with a team of military lawyers who had no advocacy experience, many weren’t sure they wanted any, but everyone had to complete the five day intensive course.

We faced the usual ‘chicken and egg’ problem with such groups: Do we start with case analysis and possibly lose everyone except the mind game players, or do we start with some direct and let them make a complete mess of it?

We opted to start with the questions.　 There were the usual ‘bad’ habits of asking ‘Can you, would you, should you?’　 We know we’ve solved that problem when the students self correct, ‘Would you, oops, withdrawn’.　 The next problem is starting the questions with, ‘Did, do, does..?’ 　We explain how that gives the opponent an easy base from which to object, ‘leading on an issue’.　 Self correction quickly occurs with that too.　 And then there is that irresistible desire to use the all time lazy question, ‘What happened next?’

I doubt that there’s a reader of this blog who hasn't overused that question at trial.　 Indeed, in the absence of a proper case plan its use is inevitable because the advocate has given away control of the witness and surrendered to the witness’s unstructured, non-prioritised story.　 Put bluntly there’s no persuasion in a narrative that is extracted by, ‘What happened next?’

But not having introduced ‘case planning’ the better response is to point out that an advocate who asks that question is clearly not entitled to send a bill for professional services as the witness can tell the story just as badly for nothing.

Silence then reigns.　 Another question is needed but everyone lacks the means to find it.　 Here’s the opportunity to introduce students to the twin powers of using topic headings and piggy backing the next question on part of the answer just given by the witness.

Start again with Jack and Jill’s story but now we have headings, and piggy backed questions that contain one of the W or H words.　 First one student and then another discovers the amazing truth that if you listen to the answer the fuel for the next question is usually there.　 Out tumbles the story.　 Picking this student and then that one we’re quickly up the hill, at the well, Jack falls, a crown breaks and there’s Jill in trouble too.　 Sweet success.

Time to break the childhood spell, show them that the rhyme only worked because every child is left to their own imaginings as to what it describes.　 What a nightmare if there is a jury to be persuaded, each juror with different imaginings.　 Where is that hill?　 Where did they start from?　 How big or small a hill is it?　 What’s the route to get up the hill?　 Was one of them carrying an empty bucket or was there a pail of water waiting for them at the top?　 Where’s the mention of the well in the nursery rhyme?　 Isn’t that just a traditional touch added by the illustrators of nursery books? Why did Jack fall down?　 Did Jill push him?　 What is this crown thing: part of his head or something on his head?　 How did Jill fall?　 Was the hill inherently unsafe?　 Is this a civil case in which Jack and Jill are suing someone who sent them up the hill for negligence?　 Is this a criminal case in which　 Jack is the victim and Jill the aggressor?　 Is it something else altogether?

Why does it matter what kind of case it is?　 It matters because the answer points the way to how the story should be told. If Jack and Jill are the victims of negligence then let’s start the story with crown breaking, falling and tumbling. And let it be painful, shocking, and a long way down.　 If Jill is the aggressor then let’s show her intent by how she lured Jack to go up that hill, how she caused him harm and how she contrived to adopt a mantle of innocence by tumbling after him. 　Perhaps there’s another explanation as to why they were there, an explanation that suggests third party involvement.

The class in now stumbling around on the edges of discovery: a case theory matters. 　So soon as you have it the pieces more readily fall into the ‘right’ place. We toss a coin and decide it’s a criminal assault case.　 Next step: is it bench or jury trial?　 Assume the former for beginner advocates.　 Step up to the white board and agree on the legal elements of the charge.　 Marshall the facts from the rhyme against the appropriate element.　 Identify the missing detail.　 Prioritise by applying the guideline, 　‘Start strong, bury the weak stuff in the middle, and finish strong’.　 Show all that on the whiteboard that everyone can see.

Now back to the beginning.　 But this time, using the white board as a guide for each student, tell the nursery rhyme as a persuasive story.　 Sure it takes longer but the topic headings, the piggy back routine, and focus on persuasion build a much clearer picture that is shared among all listeners. 　That’s progress and everyone knows it.　 Even the, “I don’t want to be here” see that they have benefited.

But we’re not done.　 We’ve only looked at case theory from legal elements and facts. 　Those are but two of the four essential factors.　 We, the class, must still pay attention to the rules of evidence admissibility and the atmospherics that influence every trial.　 The notion that the rules of evidence have a place in real life lawyering comes slowly to many students. 　They don't make the connection between the appellate cases and the witness examination they are now attempting.　 It even takes a while to join the dots between ‘making and responding to objections’ and those evidence rules.

Back to the whiteboard and a class discussion about hearsay. 　Who is reporting what and how? 　What exceptions will get the information into evidence?　 Then on to how can I call this character evidence to show that Jack is a really good guy and Jill has a list of priors long enough to make her a winter coat?

As for the ‘atmospherics’, are you too scoffing at the idea that there could be any in a Jack and Jill battle?　 Think again. 　Jack looks like an ugly, brawny, ‘Don’t mess with me’ kind of guy.　 Jill is an attractive package and she knows how to use those charms.　 There’s an inequality here that has to be redressed by advocacy skill. 　The prosecutor has the challenges of eliciting a persuasive story from Jack, setting him up to resist a cross examination from Jill’s attorney, doing that so well that Jill has to go into evidence and then having her self destruct during cross examination.

And the prosecutor can do that if he or she thinks outside the box. 　A good interview with the victim will have have included this question, “ Jack, why did you need some water?”　 To which the answer is, ‘To water the beanstalk’. 　With a little more probing it will come out that Jill only came into his life after some loose talk about golden eggs and a magical crown over a drinking session in a rough nightspot.

Voila we have the cross of Jill. 　It’s a cross that is a cross-indoctrination of the audience rather than a cross-hectoring of Jill.　 It’s nice because there’s no need to get nasty with a beautiful devil.　 It moves with pebbles not boulders. 　Here’s an extract:

Q: That beanstalk was getting bigger?

A:　 Yes

Q:　 Needed more water?

A:　 Yes

Q: So more trips up the hill?

A:　 Yes

Q: Done by Jack?

A:　 Yes

Q: Usually alone?

A: Yes

Q: And he’d return safely?

A:　 Yes

Q:　 He never told you that he fell on those trips?

A:　 No

Q:　 Always came back with his crown?

A:　 Yes

Q:　 The magical crown?

A:　 Yes

Q: Went up with you that day?

A:　 Yes

Q:　 No one else there?

A:　 No

Q:　 He fell down?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 The crown came off?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 He got to the bottom without his crown?

A:　 Yes

Q:　 It disappeared?

A:　 Yes

Q:　 You tumbled?

A:　 Yes

Q:　 But there was no one to push you over?

A:　 No

Q:　 Just you and him on the hill?

A:　 Yes

Q:　 On this fateful day when the two of you fall?

A:　 Yes

Q: But you fall after him?

A:　 Yes

Q:　 In his tracks?

A:　 Yes

Q:　 That’s a very nice piece of jewellery you’re wearing isn’t it?

A:　 Yes

Q:　 New isn’t it?

A:　 Yes

Q:　 That hill’s a land of opportunity isn’t it?

A:　 Ugh?


I see that Dreamworks’ Puss N Boots is slinking out the back of the courtroom. 　He’s been getting a much better run from the film critics than Adam.　 Everyone is buying his version of the quest for the magic beans.　 Putting it about on the big screen (in 3D no less) that both Jack and Jill are outlaw ruffians was a step too far. 　Clearly it just occurred to him that if he stayed in the courtroom he might be compelled to testify. 　Jack might do something unpleasant to him to right the wrong to his reputation.　 And Kitty soft paws would not take kindly to finding that Jill still had a place in Puss’ scruffy heart.

Hugh Selby (c) December 2011

Advocacy Essentials for the new Advocate - a Checklist

Preparation steps for a court hearing.

1.　 Know your audiences (judge, opponent, jurors, witnesses): their needs and wants.

2.　 Know the law: charge/cause of action elements; procedural; and, evidential.

3.　 Know the facts you have, know the facts you need, know how to get the missing facts.

4.　 Know the strong points of your case.

5.　 Know the weak points, such as a poor witness, uncertain facts, environmental force, or an uncertain legal point. Anticipate how your opponent will exploit your case weaknesses and prepare your response.

6.　 Interview a witness from his or her ‘most confident’ point.　 Listen to the answer and use part of the answer for the next question. Use shapes on a board or paper ( the visual method, see below) to show each topic with the fact points around the shape.　 Use other shapes/colours to represent case environment issues, evidence admissibility issues.　 Help each witness to understand that you and they are a team, working together.

7.　 Plan your courtroom presentation to start and finish with strong points.

8.　 Draft your closing remarks with these points in mind:
Start and finish on your strong points;
Anticipate and minimise the effectiveness of your opponent’s likely arguments; and,
Check that you have addressed each element of law with evidence that is good enough for the purpose – have you met the standard of proof?

9.　 Prepare and rehearse your opening statement to be a short, interesting statement of the most important facts that you are sure to be able to prove.

10.　 Design and rehearse with visual aids, such as reports, diagrams, photographs.　 Ensure enough copies of each such aid. Thus one each for: you, the judge, your opponent, the witness.

11.　 Provide each witness with an information sheet.　 This should remind them about:
Where to meet you, at what time, bringing what things (such as records, food, drink), what to do if delayed;
Who will ask them questions;
How to answer questions (listen to the question, talk to the judge, ask for repeat of question if necessary to understand it);
Having some water to sip while giving evidence;
When the court takes breaks; and,
How to contact you.

12.　 Have a check list of your court presentation:　 what you will do, what you will need (where is it ?), your proposed order of topics and witnesses.


Visual Method for case preparation and presentation


1.　 How any lawyer prepares for, and plans a case, is influenced by personality, training and experience.

2.　 ‘Formal’ systems for preparation are usually of the ‘linear’ sort. That is, start with this, then do that, and after that do this.　 This approach assumes that the planner has the information before they plan. But lawyers often get the information in unexpected ways and at unexpected times, so a linear approach is not ideal.

3.The visual method has these advantages over the better known ‘linear’ or ‘matrix’ approaches:

1. Deals well with a random approach;
2. Encourages a witness to start with something they remember well, thus builds witness confidence, and leads to better recollection by the witness;
3. Shows where information is missing;
4. Reflects environment and law problems;
5. Encourages thought and discussion about how to order the topics and the witnesses, once all the information is up on the board;
6. Allows for those with a strong visual sense to see the model in either two dimensions ( topics, law, facts), or three dimensions (which adds ‘prioritisation’ of the topics, law and facts, and pays proper regard to the case environment);
7. Should be used both in preparation and case presentation.
8. Flexible enough to be useful to react to the unexpected during a hearing.


4. The steps in using the visual method are:

1. Identify each and every legal requirement and create a randomly placed shape for each element;
2. Identify key facts against each legal requirement and note them around the shape;
3. Identify subsidiary facts that go to prove the key facts;
4. Identify what facts are missing;
5. Determine the priorities of law and fact topics;
6. Identify (evidence) admissibility and (public perception) case environmental issues;
7. Use your map to practise questions, both for chief and cross examination;
8. Prepare visual sheet templates to use with witnesses, both for preparation, and in the court hearing.　 [Note that if a number of witnesses are giving evidence about a similar event then the template can be marked up with common points of law and critical facts.]
9. Mark up your visual map for use as a guide at the hearing. For example, use different highlighter pens to show topics or related points.


Working with witnesses

YOURS

1.　 Your witness must be confident that you will ‘present and protect’ him or her.　 This is the essence of the team approach.

2.　 To develop a witness’s confidence always start an interview from what they remember best.　 Build your questions from the strength of their memory.

3.　 Show an interest in, and understanding of the witness by your voice and body language.

4.　 Agree on the topics to be talked about by the witness.　 Be sure that they understand what will be covered in each topic as they give their evidence at the hearing.

5.　 Agree on the order of those topics.　 Help the witness to understand that the judge needs to hear their story, understand the story, and be persuaded by the story.

6.　 Ensure that the witness understands what will happen at the court hearing.　 If possible the witness should go to the court room and experience sitting in the witness place before they give evidence.　 They and you (or your assistant) should practise:
so that the witness looks in the direction of the decision maker;
how to control anxiety ( eg. moving toes, sipping water, rubbing fingers, piece of paper with vertical message such as ‘SLOW’ written on it);
pausing before answering the question;
how to let you know to ask more questions about some point; eg. “Would you like me to explain”.

7.　 Give the witness some written information about their time at court. (See above on　 ‘Preparation steps for a court hearing’).


THEIRS.

1.　 Write out a list of topics and points.　 Do NOT follow a list of questions.

2. Never be aggressive or disbelieving until you have exhausted all the advantages of being pleasant and accepting.

3. Listen to the answer, think about your next question, then ask a short question based on the answer and your case analysis preparation.

4.　 Use your series of questions to let the decision maker ‘know’ your case.

5. Create a belief in the decision maker that your witnesses and your legal arguments are to be preferred to those of your opponent/s.

hugh.selbyGoogle@anu.edu.au (c) 2011.

Announcing the Advocacy Agony Aunt

What, you too have an advocacy problem: controlling your witness on direct; mental block on how to approach a witness that you must cross examine soon; a case analysis that is never good enough; too slow to make that objection; you’re talking too fast; feeling intimidated by your opponent; boring yourself and the audiences in your closing address?
Solutions to these problem exist. It’s all in the experience and talent of the readers and contributors to this blog.

Here’s how to tap those solutions.

Send an email to hugh.selby@anu.edu.au in which you briefly describe the case essentials and the problem for which you want a fix.

Selby will edit the problem (for example to ensure the anonymity of place and parties, avoid defamation, clarify issues etc) and post it to the blog.

It’s your choice whether you wish your name to be published, you’d rather use a pseudonym, or have no attribution but just the thrill and the relief of the suggestions.

Those with suggestions use the COMMENT feature which is available at the foot of each blog ( and very easy to use) to offer their fix.

Who Benefits?
1. The Justice system because you do a better job;
2. Your client;
3. You;
4. The readers of this blog who can use the problem and the solutions for training others.

Who loses?
1. Your opponents– that is until they too get on this blog!

When?
The advocacy agony aunt is waiting for your message.

Our Students as Teachers and Critics

I admit to being a slow thinker, rather slower than those witty, quick come back people who keep a party crowd, a pack of journalists at a press conference, or a jury panel nicely entertained.

So slow am I that it’s taken years to pull the threads, join the dots, and point the finger at the stubborn wrongheadedness of our student critique approach. But I’ve got there at last and, being these days a bit forgetful, I hasten to pass these comments to you before their existence is unknown to me.

What we do as teachers is to take a student’s performance and critique it as though the only participants inside the performance circle are the student and the teacher. The student jumps none too elegantly through the hoop and then, by one formula or another, we tell them of one or more imperfections, explain the ‘why’, and then tell and maybe (if we’re brave, or egotistical, or both) perform the solution. Meantime the audience of other students sits outside the ring and – if we’re to believe the popular culture – think about you know what (they were lucky, or they weren’t; they want to be lucky and maybe if they just…; and it’s not trial advocacy!).

We, the teachers, have to bring everyone into the ring. There’s no time, no excuse, for passivity or being mentally some other place. To watch and listen is not too learn. To learn one has to take the chance, to try, to fail, to try again – just as we did as we learned to walk. Every one of our students – whatever their advocacy experience - has a lifetime of communication experience to draw upon in advocacy exercises. It’s a part of our job to draw upon those experiences and give them additional use – as resources in preparing and running a trial.

This past year I’ve taught classes of from 16- 80 or more students with more success in terms of demonstrated skill development than ever before, but with no other traditional teacher help. What’s the secret? There isn’t one: I just made every student a teacher from experience, just as every successful solo teacher in remote schools has done for aeons.

Here’s an example. I want each student to develop their template for asking a witness on their side about that witness’s sighting of someone around a crime scene. To set the scene I perform a simple role play in the teaching room; for example, leaving the room and shutting the door, then knocking from the outside, opening the door, looking around the room, uttering some swear word, and leaving by slamming the door. I do this routine two or three times so as to ensure that everyone in the class has adequate opportunity to master the ‘facts’ and the sequence of them. Of course they are quick to notice if I miss a detail on iteration two or three.

Developmentally this poses such skill issues as: the student being able to see the scene in 3D as the witness experienced it and can ‘see’ it again if the questioning is good; incremental picture building so that the audience gets just one detailed, moving, 3D picture of the episode; setting a baseline from which the witness describes what they saw and heard, that baseline being ‘visible’ to all third party listeners; creating, authenticating and tendering a diagram; why multiple copies of that diagram are needed so that this witness and later witnesses can put marks on the diagram and so create additional exhibits; how to use present sensory impressions of everyone in the court room to convey common understandings of distance, sight lines, length of opportunity time, and degree of illumination; asking the witness what is her or his strongest recollection about the ‘someone’ and then moving from that point of recollection to the witness’s next descriptive recollection; and pointing out the problems with asking a witness about recollection according to some formula which, unless the first question matches their best memory, dooms the witness to repeated failure.

My job is to facilitate the students exploring these issues in turn, by their making suggestions, trying them out, seeing and hearing what works and doesn’t work. I offer explanations that bed down their experiences as acts to practise or acts to avoid. I am a ringmaster - but to many, not one performer.

And so as a collective we work our way through the challenges of technique and personal style. I invite each student to make their own notes as we go, sufficient to enable them to get it right the next time and the time after that. Then as the Master of Ceremonies I tell them where we’ve been and that lets them double check their memory cues to be sure they have noted enough. Mission accomplished as everyone has been a player, moving through a variety of learning and teaching roles.

The Advocate's Drive - a Need to Win or Avoid a Loss

Commanded by Blog Master Behan to write something that connected summer to advocacy I winced as I read the various well thought out, eminently reasonable contributions about advocacy from sundry bloggers these past few weeks.

My wincing was a form of avoidance. Unable to match the seriousness of their topics and the elegance of their writing I feared the inevitable, adverse comparisons.

While searching for an escape or, failing that, a topic that made me a very, very small target, I reviewed my collection of advocacy titbits. These are pages that I have torn from casefiles, textbooks, and course notes these past two decades because the text captured my attention, gave me a new insight, or demanded some reflection by me.

I found, and it was a surprise, that when I sorted out all these scrappy notes the dominant topic was the need to note down an insight that might be needed again (be it an evidentiary foundation, or an instruction on how to achieve some questioning purpose, or how to accentuate an aspect of personal style), and then to collect those notes in a manner that ensured they were easily found when needed. (How lucky are today’s advocates with the search routines that are just taken for granted. Indexing is a task of the past. Search by term and all your discreet references come together on one, new screen page.)

The result is my Book of Advocacy Tips and I’m ever so grateful for the work of various writers who have made invaluable suggestions for it. Without it I will not produce a good trial notebook, or efficient preparation, and I will lack a sense of security that my preparation and delivery will be adequate.

On the matter of ‘adequacy’ I was co-teaching an advocacy class very recently. My colleague, an excellent teacher and a good advocate, gave away his place on the path of life by telling the class that, “Of course, you have to make yourself believe you can win. Lacking that determination you can’t be persuasive”. I didn’t interrupt, nor did I correct. After all he’s entitled to be wrong for at least another twenty years. During that time he’ll find the wisdom that the important aim is to minimise the extent of any loss. This requires considerable attention to persuasion. It is often more than adequate. Winning is just a bonus.

Another reason to leave well alone was that his ignorant audience of eager, young students, think as he does: winning is everything. Winning makes it right. He was, no doubt unconsciously, meeting their need to have their emotional demands approved. Now if he or I had just taken his comment and used it to drive home the point that figuring out and meeting the needs and wants of the various audiences is a critical component in all persuasion - then that would have been truly effective teaching. Sadly, as so often happens in real life advocacy and in advocacy teaching, it is Ol Hindsight who seems to know best.

It was he who told me to keep it short. ‘The readers will come back if you’re not a bore’, he said. ‘ And, if you are a bore, let em off early.’ So off you go. I’ll be back.