Should Trigger Warnings be Required When Teaching Trial Advocacy?

Should Trigger Warnings be Required When Teaching Trial Advocacy?

Mark Caldwell posed an interesting question via email to a group of advocacy teachers and friends this past week, based on an article The New Yorker published about the growing trend for "trigger warnings" in academia. According to the article, the term refers "preëmptive alerts, issued by a professor or an institution at the request of students, indicating that material presented in class might be sufficiently graphic to spark symptoms of post-traumatic-stress disorder." Mark gave me another link to an article in the Christian Science Monitor that debates whether trigger warnings on books are a form of censorship.

Mark's question:

We, as lawyers, often deal with the dark side of life. It's part of what we do as a profession - clean up when someone gets themselves in deep doo doo.  In becoming a lawyer you must have your eyes wide open that regardless of which area you choose to focus your practice you may come up against the ugly realities of the world.

As teachers, are we responsible for putting warning labels on case files? What about texts that discuss the law and use cases to teach legal points?

Mark's words do a nice job of capturing the reality, not only of law practice, but of law teaching. In an era of trigger warnings, what duty do those of us who teach lawyers and law students have to shield them from the ugly realities of the law?

Why Are Lawyers So Dramatic: The Sequel

Since posting about dramatic lawyers yesterday, I've received some thought-provoking emails from friends. I thought I'd follow up on the post with some additional thoughts.

First, to those of you who commented favorably on my new status as a centerfold, especially given my age, girth, and so forth: Thank you. It is heartening to know that we centerfolds have supportive networks of friends and family who will be with us throughout the process.

Second, on the subject of drama, my friend and colleague Tom Leggans provided some great insight. Tom is an Assistant United States Attorney and a member of our trial advocacy faculty at SIU School of Law. He is a phenomenal trial lawyer and teacher. Here are Tom's thoughts:

Moving Beyond Powerpoint to Engage Advocacy Students

Suparna Malempati is an associate professor of law at Atlanta's John Marshall Law School, where she teaches trial advocacy. This is her first guest piece for our blog, and we hope there are many more to come.

 When I began teaching Trial Advocacy a few years ago, I structured my class in a manner similar to the NITA programs.  I began class with a fairly short lecture (generally 20 minutes) about the day’s topic.  I then either demonstrated the technique being taught or showed a video clip.  I engaged the students after the lecture and demonstration with an exercise.  I thought that to be the best manner of organizing the class.  I spent hours preparing power point slides for each lecture, and summoned all my talents of effective presentation.  After all, I was a trial attorney.  I was able to engage jurors with brilliant closing arguments that lasted hours.  Of course I could hold the attention of students for a 20-minute lecture.

Joseph Anderson Jr's 'Effective Courtroom Advocacy'

Review of 'Effective Courtroom Advocacy',  Joseph F. Anderson Jr.,  2010, NITA (and through Lexis Nexis), ISBN  978-1-60156-124-4,   to order click.

New to trial work?  Buy this book. Not new but wondering why you're not much good?  Buy this book. Experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.

With the 'who can benefit' issue now out of the way let's have a look at the interwoven 'why' and the 'what'.

This book doesn't just give examples of good advocacy.  Anderson succinctly, clearly and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ' how, when and why to make objections' script as a timeless teaching tool.

Those readers who understand that 'decision maker indoctrination' trumps 'sadistic endeavour' as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial.  The transcript still sings.

Anderson comments that he once heard that, 'the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge's oath'.  He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an 'evidence free zone', substituting assertion for the evidence (rather like those advocates who do bad directs).  But not Anderson.  Here's that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us.  Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid and boring is not the way to win the hearts and minds of decision makers.

For all of us there's a useful two page checklist of 'do's and don'ts' for closing argument.  Put it in your trial reference folder, use it as a tool to bring some objective critique to the closing you'll deliver after lunch or tomorrow morning.

While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests.  The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.

Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery.  Anderson cites the 1993  National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done;  about 15 % when the prosecution/plaintiff rests;  a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions;  with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.

Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully.  There is not much you can do, he says, 'except respectfully and steadfastly hold your ground'.  That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions.  The witness’s advocate, quite properly, stood to object.  The judge cut her off with a ‘Sit down’.  She did.  I felt for the witness, paying out good money for nothing.

Paying out money for this book though is well worthwhile.  It should sit alongside some other texts that have more to say and suggest about questioning techniques.  Anderson’s comments on those matters reflect the orthodoxy of the past.  We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.

So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.

Hugh Selby ©  March  2013.

Sex Scenes in the Court Room: not for beginners or the faint hearted.

At a typical sexual assault trial there’s two people who’d rather not be there: the alleged victim and the alleged accused.  From now on I’ll call them the victim and the accused, but that’s without pretending to know where the truth lies.

For both sides, the prosecution and the defence, the advocacy equation applies:  know the law (the recipe), assemble the necessary facts for proof (the ingredients), sift all facts through the evidentiary and procedural sieves, cook the whole according to law, and present the finished products like a good cook woos their diners by a presentation of courses that is just right for the season and the diners. For readers who like it simple: know the law, marshal the facts, clear the evidentiary and procedural hurdles, and know your audiences’ needs and wants.  Do all of that, add a fair dollop of experience and talent to master the atmospherics and you’ll be persuasive.

To highlight the advocacy difficulties faced by both sides let’s restrict the scenarios to two well known types: 1.  The DNA and identification evidence is good so the only factual issue is ‘consent’; or, 2. The claimed event happened a long, long time ago.  The victim claims excellent recall.  The accused claims no recall at all. The claimed event is ‘fantasy’.  In both these scenarios the victim and the accused have provided a statement to the police that has gone to the prosecutor and the defence advocate.  While the victim’s statement is a mix of facts and allegations, the accused’s is much shorter - asserting consent in the first case and denial of the event ever occurring in the second.

The usual way in which these cases ‘play out’ is that the victim gives a short and sobbing version of what happened (such as, ‘I met the accused at a party.  Later I just wanted to go home.  The accused said they’d take me but instead forced her/himself upon me’.)  Then the defence lawyer cross-examines so as to suggest that this version is just self-pity and embarrassment for being an easy lay, or is an invention arising from a desire for revenge, some form of madness, or both.

Occasionally the defence strikes it lucky and the victim puts on such a poor performance as witness that the accused can avoid giving evidence.  That, though, is the exception.  The atmospherics of the here and now is that when ‘consent’ and ‘fantasy’ are the defences then they’d better be substantiated from the mouth of the accused in the witness box.

So the decision maker and anyone in the public gallery gets to hear another short version that is shy of facts and long on assertion.  Sometimes it is only slightly expanded from, ‘S/he was up for it, I mean s/he really was’, or, ‘I never laid a finger on them’.  The prosecution cross-examines in a perfunctory way.  The result is that the decision maker hardly gets to know the accused.

Whatever the decision maker was hoping for from these live characters (a titillating retelling of a date gone wrong, the drama of a family holiday or school camp turned nightmare, the quiet lodger who changes into the rapist etc.) it is likely to be a lot less compelling than they can find and enjoy in the romance, soft porn ‘literature and film’ they can access on their tablet.  What they hear in court is so incomplete, even boring, that it’s quite likely that tablet material is privately inserted into the victim’s and the accused’s stories by the decision maker to fill in all the gaps.

 ‘Telling the story’ is recognised as an advocacy skill but how is that done in sex cases?  Most of us don’t give details about our sex activities to outsiders.  It’s enough, even when a relationship is over, to say,  ‘They were good in bed’, or, ‘The bad sex was just one more reason to get out’. Nothing more is expected. The rest is left to the listener’s imagination. Even the braggers tend to restrict their tales to a small group of listeners that they expect to be impressed.  ‘Telling the story of sex’ in a courtroom is an unnatural thing to do.  Not only is the story being told to outsiders, it is being manipulated by advocates, and the time and place are not the teller’s choosing.

And then the advocates make it worse by looking towards the witness and expecting the witness to look at them.

Let us be clear: a witness, any witness, should be looking towards the person or people who matter in a courtroom.  The decision makers, not the advocates, matter to a witness.  Likewise the witness, not the advocates, matter to the decision makers. Therefore the witness should look towards, but not stare at, the decision maker.

The advocate glances at a witness to give reassurance to their own, and to pick up body language cues from any witness.  Otherwise the advocate is looking towards the decision maker so as to evaluate their reaction to the questions and answers and to physically remind their witness to look in the same direction. [The exceptions are: 1. when the witness is so emotionally vulnerable that they must have sustained eye contact with their advocate; and, 2. when the witness is so confronting to the decision maker that the advocate deliberately attracts the decision maker to the advocate and away from the witness.]

Breaking of eye contact by witness and advocate brings advantages to both.  For the witness the freedom from eye contact allows them to be less aware of the courtroom and so a bit freer to tell the story.  For both witness and advocate the lack of eye contact allows both to focus upon the story that must, however unwillingly, be well and truly told.  For the decision maker the ‘face on’ view of the witness gives them more connection to that witness, and an enhanced opportunity to weigh up how, for what and why a witness is believable.

For the advocate there are always multiple audiences at a trial.  The advocate must recognise and do their best to respond to the emotional wants and the objective needs of each of them. Witnesses want to be believed.  Decision makers want to have believable facts to which they can apply the objective criteria of the law.  Both witnesses and decision makers want to feel respected. When the advocate ceases wanting to be the centre of attention those audiences benefit, and so does the advocate.

With the witness and their advocate freed from the expectation that they will look at each other, both are able to concentrate on the story that must be told.  For both victim and accused it is essential that their advocate:
• is adept at creating visual images through the witness’s answers for the decision maker;
• gives the decision maker sufficient time - by being silent - to allow the decision maker to reflect on the answer;
• uses tone that is ‘right’ for the occasion and changes appropriately; and,
• is able to listen to, analyse and then apply the answers given by their witness.

Most advocates never acquire those skills. They are forever stuck at the level of the form of the question – both in their own questioning and recognising opportunities to object to an opponent’s question.

The direct examination of a victim or accused in a sex case requires the advocate to manage the witness so that the witness tells an interesting story in an incremental way that creates clear images in the mind of each decision maker.  Usually this means that any earlier written statement by the witness will be both incomplete and will set out the events in a time driven order that will be boring to most listeners. The incompleteness is the result of those who write statements not understanding that it is facts not fact summaries or inferences that are evidence.  The boredom reflects our listeners' short attention spans and the need to capture and then keep their interest by repeated drama jabs.

To succeed the advocate uses written statements as just a starting point.  The advocate roughs out the story, picks a high point to start with, and another to finish, and marks the troublesome stuff to bury in the middle.  The topics are now clear.  When questioning on a topic the advocate must ‘see’ in their mind the 3D representation that is being described by the witness.  That ‘sight’ is impossible if the advocate is maintaining eye contact with the witness.  ‘Seeing’ the scene also allows the witness to be slightly removed from the embarrassment of telling this story in public.  They too focus on the images, not the courtroom. It’s not enough for the witness to say that clothing came off.  What matters is the detail of how it came off.  That’s not one question. It may be quite a few when ‘consent’ is the issue at trial.

The prosecutor sits down.  The defence advocate rises to cross the victim.  An early gift is that the victim has told their poor story only to the prosecutor. The decision maker is at a distance and never looked into the face of the victim.  The victim now looks at the defence advocate who silently thanks the prosecutor for bad witness management.  Throughout the cross the victim will be re-victimised and the decision maker will only see the victim’s face when the victim needs to escape from the questioning, that is, seems to be caught out.

The defence advocate is about cross-indoctrination.  Here is the chance to have the decision maker see another story, one that has the accused being acquitted. The cross starts wide, out at an innocuous place.  There can be questions about going on a date, dates being followed by sex, all such questions re-setting the scene for each decision maker.  That done then every factual hole in the victim’s story is an opportunity for a creative, but reasonable idea. ‘You told us that your clothes came off didn't you?’  ‘Let’s explore that’.  And then follow a series of questions. ‘You took off your shoes?’ ‘You know the accused’s prints and DNA weren’t found on the shoes?’, nor, “ …on this or that piece of clothing?’  ‘You had them all on when you went in?’  “You had them all on when you left?’ ‘But in between you did…[this and that]?’

It’s a myth that a cross-examiner has to control a target witness by looking at them, just as it’s a myth that some kind of verbal aggression is the mark of good cross-examination.  ‘Never be nasty until you have exhausted the benefits of being nice’ should be a mantra for all ‘about to strike’ cross-examiners. The decision making audience can be carried to the advocate’s destination on a boat of sweet reasonableness.  Every so often there will be change of direction and a change of pace. The audience will take it all in. Surely, along the way the target may drown but there’s no reason to be triumphant about that.  Pity is a better emotion.

For the fantasy defence it’s nice to be able to show that the victim’s timing is hopelessly wrong (eg. during that summer holiday the accused was a long way away).  However, the problem that faces innocent and guilty alike for remote events is that they just don’t know where they were at the time of the alleged event.  If they ever remembered then time has erased that memory.  A technique for cross of the victim is a form of impeachment: ‘You’ve told your story as best you can remember?’  ‘Those are clear memories?’  ‘Memories that haunt you?’  ‘And yet, you didn't tell us about such and such, did you?’ ‘Surely you must remember that detail?’  These last questions become the refrain for all that is not remembered or was not disclosed during the direct.  In the cross-indoctrinator’s fantasy world it all ends with the victim saying, ‘I can’t remember’, whereupon the advocates mutters, ‘Can’t remember or can’t invent?’ and is indifferent to the answer because the decision makers (at least enough of them to thwart a conviction) have already dismissed the witness.

When the prosecutor cross-examines an accused then the contrasting stories have been heard from both sides.  The prosecution story should have been undermined by an early cross-indoctrination of the decision makers by the defence advocate’s cross of the victim.  Since then the decision makers have also heard the accused’s version (that should, of course, match the cross-indoctrination).  The prosecution must establish not only that the victim’s story is to be preferred but that it is to be preferred beyond a reasonable doubt.

If the prosecution advocacy on the direct of the victim was poor, and the defence presentation has been good, then the prosecution will fail.  Their cross will look desperate, especially if the decision maker has had plenty of time to listen to the accused’s detailed account and watch the accused’s face.  Just as governments are said to lose elections, rather than the opposition win them, so too do prosecutors lose cases, rather than the defence win them.  In both cases the government or the prosecution throw away a position of strength.  The opposing side fills the void.

Where the advocates  are evenly matched then the prosecutor can reinforce the credibility of their victim by structuring the cross of the accused around the telling details of the victim’s memories.  The embedded argument is that such details can’t be invented – they ring of truth.  The decision maker needs to be lead to this position:  acceptance of the victim’s story coupled with no need to decide if the accused has no memory or is faking no memory.

What of redirect?  No mention of that so far and for good reason: it’s pointless when the horse has bolted.  A good direct anticipates the cross and reduces the target size of the witness.  Redirect is then a sparingly used tool, taking up the witness’s invitation to go there safely because during cross the witness uttered the phrase (rehearsed pre-trial) to the cross-examiner,  ‘Would you like me to explain?’  The cross-examiner would not like that, but the witness’s advocate can return to the point, if necessary, without fear of failure.

Too many prosecutors and their assistants tell their victim witnesses that it will be hard to give evidence but the witness can do it, then fail to teach those witnesses how to do it.  For so long as those prosecutors are wedded to the error that the witness and the advocate must look at each other and ignore the decision maker there is no hope.  It’s not much better when the victim gives evidence by remote CCTV.  Too often the victim is distracted by a monitor in their remote room, so that the decision makers see a witness who is not looking towards them.

The accused is in the courtroom.  A good defence always shows those in the courtroom that there is teamwork between accused and their lawyers. If the defence advocate ignores the accused– as is often the case- then decision makers find it easy to see them as guilty.  The defence advocate needs to show the decision maker that the accused matters, that the accused and the advocate respect the decision makers.

Questioning about sex brings atmospherics to the forefront of advocacy.  Basic knowledge about how to form questions and make objections is too little skill. The atmospherics of a sexual assault case are ever present: advocates, of whatever side, who ignore the atmospherics deserve to lose, but their clients don't deserve that.

Hugh Selby ©
July 2012.

Introducing Good Advocacy - the mental and performance skills

Good advocacy requires a mix of mental and performance skills. The latter are seen and heard as advocates examine, cross-examine, make objections, and make submissions. The mental skills are rarely consciously considered by the various courtroom audiences. This is much the same as film audiences who are unlikely to focus upon how much of their enjoyment of seeing their favourite actors and being immersed in the story depends upon the unseen screenwriter’s skill. It was that person who framed the issues, determined both how the story was to be told and the message (matching the argument in a court room) put across, and who then paid close attention to developing not only the actions by, but also the personalities of the characters (matching the witnesses in a court room) and the relationships among them.

Screenwriters must entertain unseen. Their future audience must be drawn in, captured, taken on a trip and leave satisfied. Trial advocates must persuade in person, in the here and now. Their audiences (which include decision maker, client, witnesses, opponents, and media) must be drawn in, captured, taken on a trip and leave persuaded. The advocate has the dual roles of ‘actor’ and screenwriter.

On stage, in a film, at trial, the story is important. A weak plot cannot be redeemed by good performance, though it can be made to appear better than it is. On the other hand the deserved consequence of a poor performance can be avoided by a good plot line. Thus the critics can write, “Great play…lesser actor”, “Stunning choreography not matched by the dancers”. The advice to screenwriters to pursue ‘the real but unusual’ (see Linda Aronson, ‘The 21st Century Screenplay’, Allen and Unwin, 2010, ISBN 978-1-74237-136-8) should be followed by trial advocates both in preparation and in performance. So much of what is seen and heard in courtrooms is ‘same old, same old’. Decision makers crave for something interesting, something that tweaks and keeps their interest.

The mental skills of advocacy have several components. The first is to draw upon knowledge of the applicable law (substantive, procedural and evidential). That knowledge is essential to understand the breadth of facts required to build a case that meets the legal elements, and to evaluate the available facts in terms of whether admissible or not, and whether sufficient or not to create a winning case.

The second aspect of the mental skills of advocacy is anticipation of the objective needs and the subjective wants of the various audiences. This includes assumptions about what one or more of those audiences know and believe. Screenwriters too must anticipate audience reaction but, unlike advocates, have no opportunity to change the presentation in response to audience changes. Good advocates anticipate how their opponent would run the case. That anticipation is a factor taken into account by the advocate when deciding when and how to present a specific set of facts. For example, knowing that the opponent must cross-examine on a particular topic the good advocate ensures that that topic has been well presented during examination-in-chief so that the opportunity for effective cross-examination is limited.

Good advocates also aim to satisfy the needs and wants of their decision-making audiences. There is a significant difference between a judicial decision maker and a jury of lay people. A judge uses the law as the primary filter of the facts. Knowing the legal elements, be that for a civil case or a criminal charge, the judge can decide whether any fact being asserted by a witness is relevant, whether it is admissible within the rules of evidence, and then what significance (known as weight) to give to it.

Jurors on the other hand put the facts first, run them through the filter of life’s experience, and then turn to the law. Our legal system reinforces this approach by leaving until the end of the trial the judge’s explanation to the jury of what are the legal principles to be applied.

A practical illustration of how these audiences demand distinctive approaches is in the use of topic headings during examination-in-chief. With a judicial decision maker the use of a legal topic heading is good technique: “Let’s now turn to the issue of performance - who did what after the contract was signed”. That topic statement indicates that the next set of questions is about performance (an oft used law term in contract disputes) and non-performance by the parties of their contract obligations. Supposing instead that the trial is before a jury then the topic could be, “Let’s now turn to what happened after the signing – who did what, when and where”.

A third aspect of the mental skills of advocacy is to identify, assess, and then prepare a response to the other environmental factors (that is, beyond whether it is a judge alone or jury trial) that will influence the reception of evidence and submissions. Only fools ignore fashion – be that the fashion of ideas, of themes, of expression. Lawyers are quick to direct their clients and witnesses on what clothes to wear and not wear to court – an instruction that can be labelled as ‘showing respect to the court’ or, ‘avoiding a prejudiced negative mindset from the decision maker’. Fashions change. Not so long ago it was expected that men would wear tie and coat in the witness box – an expectation that ensured that the honest witness who wore his tie and coat only to baptisms, weddings and funerals would look ‘shifty’ in the witness box because the clothes were uncomfortable. These days the sensible instruction is, “Look clean and tidy and hide anything that might make a judge or juror fear you”.

Fashion is fine, providing you fit in or seem to do so. To be viewed as an ‘outsider’ is to bring prejudice into the court room. To pretend the prejudice is not there is disingenuous. A party or a witness who carries the ‘outsider’ label is at a disadvantage, so much so that the advocate must consider, “How do I and this witness deal with the prejudice?” It is not enough to make a statement that allows the decision maker to baldly assert, “I am not prejudiced”. Such a statement merely cloaks the prejudice but successfully answers any appeal point: “Counsel, you have submitted that the decision below was affected by prejudice but where is the evidence of it, evidence that will counter the express denial of prejudice?”. The prejudice must be exposed and dealt with so that the decision makers then behave in a non-prejudiced way, even if along the classic lines of, “I don't like the members of ‘x’ group, but this one is an exception”.

The quest for ‘a fair trial before unbiased decision makers’ has long been recognised as a necessary part of our justice system. This is one of the environmental factors to which the advocate must pay attention. Suppression of media comment about a forthcoming case is a well-established path intended to dissipate likely prejudice by potential jurors. (Whether it is applied or not depends upon predominant legal mores in particular jurisdictions.) As well, or instead, there may be applications to delay the trial or move the venue. Analogously ‘a reasonable apprehension of bias’ is a long-standing basis to ask that a judge not hear a case. However the system presumes that judges, though human, are immune from the frailties that beset we lesser mortals. This is one of those convenient legal system myths. For those who want to believe that the taking of the judicial oath somehow brings a better person into being, see the rebuttal by Robert Trivers, ‘Deceit and Self-Deception (fooling yourself the better to fool others)’, Allen Lane, 2011, ISBN 978-0-713-99826-9.

So far the discussed aspects of the mental skills of advocacy – law and practice, audience needs and wants, and other environmental factors – have been tasks that begin in the preparation for a particular trial and then ‘go live’ at the trial. For the playwright or screenwriter the parallel process is the preparatory time when there are decisions about genre, about message, about scenario, about the symbiotic relationship between message and scenario, about the ‘spark’, about character arcs, action development, relationship development, and ‘critical, crisis moments’.

For both advocate and writers for stage and film there are the additional mental requirements of intuition and ‘instant’ reactive capacity. Aronson quotes decision-making expert Herbert Simon’s observation that, ‘intuition is analytical thinking frozen into habit and into the capacity for rapid response through recognition of familiar kinds of situations’ [Aronson, supra, page 31]. That observation mirrors the insights to be found in Jonah Lehrer’s, ‘The Decisive Moment - How the Brain Makes Up Its Mind’, 2009, Canongate, ISBN 978-84767-313-8. See also the discussion in ‘Lessons from the Neurosciences for Advocacy and Advocacy Teaching, at http://advocacyteaching.blogspot.com.au/2011/03/lessons-from-neurosciences-for-advocacy.html . As observed in that blog article (which draws extensively on Lehrer), “The ‘pay off’ for accumulated skill (aka wisdom) is that the twinges, the gut response, the intuition are not superficial. On the contrary, they reflect the distillation of all that has gone before, not consciously perceived, but being put to work at the right time. It is because so much of that process is ‘deep’ that it is impossible to precisely explain ‘why’ or ‘how’ it came to be applied.”

As mentioned earlier the advocate combines the roles of writer and actor. While the writer’s intuition is cut off once the script is finished, for the advocate the intuitive, reactive mental skills are essential at trial. Talent is a springboard to, not a guarantee of success. Talent, for those blessed with it, allows Simon’s ‘intuition’ to be developed more quickly than for those with less of it.

The performance skills of so many advocates are rudimentary and never advance beyond that. ‘One size fits all’ is the usual approach. Outside of the obvious reasons (such as, when your opponent is weak you only have to be slightly less weak to survive; it is so very easy to pass the blame for defeat to an absent witness or judge; and, the incompetence of counsel is a very difficult argument to raise on appeal) ‘traditional’ advocacy training is ‘basic’ and directed to beginner questioning and submission technique with hardly any attention to the required mental skills.

To advance beyond those early practical skills the advocate needs to acquire a deeper understanding of the underlying mental skills, the ability to be perceptively self-critical, to create that bank of quality experience from which sound intuition is drawn.

A telling example of how limited are most advocates is the manner in which they conduct an examination-in-chief of a witness for whom there is a written statement. It is often the case that the statement was prepared following the witness being interviewed by someone other than the advocate. Hence there is a lack of quality control. Moreover the statement taker is unlikely to have developed an overall case plan, let alone to understand the methods of making a narrative interesting. The default instruction to take a statement is to follow the chronology and not to deviate. Nevertheless the typical advocate is a slave to the written record, blind to anything that might exist beyond the words on the page. There is an untested assumption that the questioner was competent and the witness attentive during the interview. The advocate’s questions are wholly and solely responsive to the writing: the witness might as well be a computer-generated voice, cued to give back the words on the page. There is not even an attempt to consider how that information might be re-ordered so as to start and finish with something interesting to the decision maker.

To move beyond the fetters of the page the advocate needs the experience and the confidence to work with the witness to recreate a prioritised narrative, one with movement and depth. A witness statement is a foundation for case development not an end. Just as screenwriters use various forms of flashback, so the advocate must be able to control the presentation of space and time. The journey towards questioning skill for the advocate is to develop a capacity to visualise and hear what happened, to do so in 2D and ultimately in 3D. The master advocate is within the recreated scenes, magically touching the bits that the audience is now to see and hear through the combination of advocate questions and witness answers. That capacity depends upon the mental skills to conceptualise the whole case and parts within it, and to develop the ‘intuitive’ ability to seize the moment in the courtroom to exploit something said or left unsaid by a witness.

It is that ‘recreative’ capacity which enables the good advocate to extract a story from the witness that limits the opponent’s scope in cross-examination. But to limit is not to deny. The skilled cross-examiner takes both witness and other audiences on a journey, rather like an interesting and skilled guide can take people through an art exhibition. The cross-examiner opens the minds of the audiences to interpretations previously unrealised. The audiences see what was previously hidden, hear what was previously mute. They come to conclusions not previously considered. They are grateful to the cross examiner, even spell bound

To watch and listen to a good ‘reactive’ advocate is to experience a moving performance. Such an advocate seems effortlessly to respond to the messages and opportunities provided by a witness, an opponent, a trial judge. Such an advocate is a conductor. The audiences – decision makers, people in the gallery – will marvel at the smoothness, the effortless control, the change of direction, the ‘just enough’ pauses to allow audience reflection, the ease with which a witness (the advocate’s or the opponent’s) is taken on an unexpected journey through the field of facts, and – if they are acute – at how they, the audiences, have adopted the advocate’s argument well before he concludes it. That is persuasion and its masters are all too few.

Hugh Selby © 2012

Teaching Outside the Classroom: The Grover Thompson Clemency Hearing

Every now and then, it's good to get out of the classroom and into an actual advocacy environment. A few years ago, I attended the AALS mid-year evidence meeting in Cleveland and listened to a panel discussion in which Professor Stephen Saltzburg of George Washington University recommended that evidence professors stay in touch with courtroom practice by embracing opportunities to serve as advocates, magistrates, special masters and the like. I agree with him, and I would say his advice applies—and perhaps even more emphatically—to advocacy teachers as well. Imagine how myopic and jaded our teaching would become if our experiences were limited to the artificial world of classroom case files or the often overheated and even farcical arena of mock trial competitions!

When I joined the faculty at Southern Illinois University School of Law, I was not licensed to practice in Illinois. Luckily, I was licensed in a state that had reciprocity with Illinois, so I was able to apply for admission by motion to the Illinois bar. Since being admitted in 2009, I've tried to follow Professor Saltzburg's advice, mostly on a pro bono basis. I served as a hearing officer for a labor dispute at a local non-profit cooperative grocery store.  A colleague and I worked together on the rehearing of a first-degree murder case two years ago until problems with our client forced us to withdraw (she later pled guilty to second-degree murder). I'm handling a DUI case right now. And I'm also working as a supervisory faculty member and attorney with the Downstate Illinois Innocence Project, which will occasionally require courtroom and administrative board appearances.

In the latter capacity, I had a great advocacy and teaching experience a couple of weeks ago.  Our students had prepared a posthumous clemency petition for a man named Grover Thompson, who was convicted in 1982 of the attempted murder of an elderly woman in Mount Vernon, Illinois. (For more on the case and the hearing, click here).  Mr. Thompson always maintained his innocence, but tragically, died in a maximum security prison sixteen years into his 40-year sentence. A few years ago, the cold-case unit of the Carbondale police department solved a murder from about the same time period. In solving this murder, the department worked with local departments and discovered that the killer, Timothy Krajcir, had committed a string of rapes and murders in a four-state area.  As part of a deal to avoid the death penalty in Missouri, Krajcir confessed to more than nine murders and 30 rapes.  He also confessed to the crime for which Grover Thompson was convicted.

The students prepared a marvelous clemency petition and submitted it to the Illinois Prisoner Review Board. The Board makes advisory recommendations to the Governor. There aren't many rules or procedures governing an appearance before the Board, save one main rule: you get 12 minutes for a hearing, no more, and less is preferable!

Our hearing took place in the State Capitol on January 11. None of the students who helped prepare the petition had taken a trial advocacy class. We had to prepare a 12-minute case that would do three things: (1) convince the board that Grover Thompson was actually innocent; (2) persuade the board that Timothy Krajcir's confession to the offense was valid (the Mount Vernon police believed that Krajcir's confession was an opportunistic effort to claim credit for the crime and that he must have heard the details from Grover Thompson in prison); and (3) humanize Grover Thompson and the effect of his wrongful conviction on his family.  We had two police officers who wanted to testify in support of our petition, as well as Thompson's nephew, who had traveled to Illinois from Minnesota for the hearing.  I also thought, as did the DIIP directors, that it was important to involve the students in the presentation somehow.

That's a lot to cram into 12 minutes!  Now, I should state that one of the DIIP directors was working behind the scenes to get us an extension of time, but until the morning of the hearing, we did not know whether the extension would be granted. 

We planned, prepared and practiced a 12-minute version of the hearing and also a 20-minute version.  To ensure that no one went over time, we elected to proceed with testimony via short, controlled direct examinations, conducted by the students.  We rehearsed all afternoon the day before the hearing, and when we found out the next morning we would actually have 25 minutes, we rehearsed one more time.  The discipline of trying to make our complete case in 12 minutes helped our 25-minute case considerably.  Everyone knew what our theory of the case was, and each witness knew the 3 to 4 points we needed to get from their testimony.

The hearing itself was a great exercise in the principle Semper Gumby: always flexible.  It took place in a cavernous hearing room with horrible acoustics. To complicate matters, a construction project involving jackhammers was ongoing immediately outside the room. We could see the workers passing back and forth in front of the window. Finally, we were the last case called at the end of a long day of cases. The board president made it clear that everyone had read our petitions, that he had made an extraordinary concession to grant us extra time, and he hoped we would not waste anyone's time with our presentation. A truly daunting environment for any advocate, let alone three students who were conducting their first-ever direct examinations!

The hearing went extraordinarily well. We finished our case in 22 minutes, after which the board asked questions of our witnesses and advocates for another 25 minutes.

We won't receive news of the Board's recommendations for quite some time. In the meantime, however, working on the case and participating in the hearing was an invigorating experience and a rich teaching opportunity. Our students learned several important lessons: (1) Be prepared; (2) Rehearse and practice; (3) Learn to read the judge or hearing officer; and (4) Be flexible, because not all hearing environments are as nice as the law school's moot court room.

My experience caused me to reflect on the advocacy teaching opportunities that arise in real cases. I have no clinical teaching experience, but I know these opportunities must surely arise on nearly a daily basis. I'd love to hear from readers who run clinics about the advocacy teaching that goes on in a real case. The artificial and controlled case files we use to teach advocacy are necessary to teach discrete skills. But there are no substitutes for real issues, real cases and actual adrenalin!

Don’t Critique What You Don’t Know How to Fix

"You talk too fast. You have to slow down. So work on that, okay?"

"Okay."

I heard that critique more than once as a student advocate and as a trial attorney in the Army JAG Corps. I would try to slow down—really I would—and sometimes I could be successful for as long as a minute or two. But when the adrenalin began to flow, I would forget to slow down, and once again, I would talk too fast. I was aware of it, but I didn't know how to stop, and no one who told me to slow down ever taught me how to do it.

A critique that identifies a problem without providing a solution that works is useless to the student. Nothing will change. In fact, things may become worse for the student as she becomes more conscious of her shortcoming, yet frustrated by her inability to solve the problem.

A few years ago, I adopted a critiquing mantra that I adhere to religiously: don't critique what you don't know how to fix. If I don't know how to help a student and can't figure something out in that moment between the end of their performance and the beginning of my critique, I stay away from it. . Paraphrasing Mark Twain, I've come to believe in such situations that it is better to be thought a fool by my silence than to open my mouth and remove all doubt. It's better for me, but more importantly, it's better for my students.

I developed this mantra after sitting through some very awkward advocacy critiquing sessions, watching folks dispense such sage advice as: "You don't talk loud enough. Talk louder so people can hear you." "Your movements are distracting. Stop making distracting movements. That way, the jury won't be distracted by your movements." "I don't like what you're doing with your hands. It's annoying. Put them somewhere else." And so forth. The teachers had identified genuine problems, but had given a tautological solution that was of absolutely no use to the student. And by the way, I do not excuse myself from this condemnation; I've given many useless critiques to students over the years

It's easy to identify advocacy mistakes, but much harder to fix them. So the question naturally arises, if we don't know how to fix things, how do we learn? The answer to that is easy. Teach with others, borrow freely from them as you watch them solve advocacy problems, and reach out to colleagues when you need some help. Sometimes, even in a short advocacy course, a brief conversation with someone else can provide a solution that you can then offer to the student later in the course. Often, I'll take note of the problem and contact a friend for help (I'll admit, I've even written to the Advocacy Agony Aunt on this blog and, using Hugh Selby's advice, helped a student solve a problem).

When you can help a student change an advocacy weakness into a strength, you are participating in something that is truly transformational. It can even be life-changing. I went through this myself several years ago as a student in Joshua Karton's course at the Army JAG School, and I have seen him work his magic on many other students since then. I watch in awe, and I take away from Joshua what I can and use it with my own students.

I've attached a link to a video that Charlie Rose and Hugh Selby took this summer at a NITA course. The three of us had a student who could not slow down yet had been told for years that she needed to do so. Watch Hugh in this video, and then, when you face students with the same issues, try the technique. It works.

I tried it again this last week in a trial advocacy course. The student that I was working with spoke so fast it was difficult to keep up with her. So I stopped her, asked her to take off her shoes, and walked her through Hugh's toe-flexing exercise. She was embarrassed at first—and on the verge of tears at one point—but she did it. And, most importantly, she slowed down. She is on one of our school's appellate advocacy moot court teams, and she told me that people have been telling her to slow down for years, but no one ever told her how to do it.

Thanks to Hugh, I learned how to help her, and I was able to provide the solution to her problem. But if I had not gained this knowledge from him (or someone else; I'm sure there are other effective techniques in use), my critique would have been worse than useless to her. It would have been the same empty phrase she'd heard many times before.

Don't critique what you can't fix. But remember—everything can be fixed. If you don't know how to solve a student's advocacy problem, reach out to someone who does, learn what to do, and then return to the student and help them. It will change them—and you—for the better.

 

 

Lessons from the Neurosciences for Advocacy and Advocacy Teaching

-->

The best advocacy, be it questions or submission, is elegant in the simple beauty and efficiency of expression.  The ideas are so clear that they capture the audience and hold them as the logic plus the stagecraft of the advocate glue one point to another and another.

If we think about our advocacy, if we think about improving it, and improving the skills of those whom we teach or mentor, then the ‘best advocacy’  is our aim.

However, beyond the prescriptive models that have served these last forty years to train the novice, what do we have that is generally agreed to be applicable for working with those, who being no longer novice, can aim for greatness?

An experienced advocate listening and watching another experienced advocate can have the same rewards and punishments that a skilled musician has when listening to other musicians, or a skilled dancer watching dancers, or a good golfer watching one of the best. There is sufficient critical capacity to be alert to mistakes, to be in awe of aspects of a performance, but likely as not, insufficient capacity to answer, “How did he or she do that?  How could I achieve the same result?”

Just to make the problem a bit more complex the performer too is unlikely to be able to explain how or why they performed so well.  They just did.  We use such words as ‘inspired’, ‘out of the blue’, ‘magical’ to label that something extra.

Fortunately there is newly found light to help us better understand those perfect intuitive decisions. A chance chat with a Business School teacher took me to psychological texts on neuroscience developments, making choices and problem solving. Out with those old, and wrong ideas, about the separation of the emotional and the rational.  In with the new knowledge of how different parts of our brain receive, store, and deal with information. Our emotions and rational decision making are not non-communicating systems. They are closely interrelated.

I was reading with an eye to any insights the research offered for teaching advocacy and being an advocate.  The pickings made it worthwhile. I use them liberally in the rest of this essay. For those readers who would like to follow the road back to the source I strongly recommend the easy to read and digest Jonah Lehrer’s  ‘The Decisive Moment. How the Brain Makes Up Its Mind’, 2009, Canongate,  ISBN 978 84767 313 8.

Learning from mistakes

It’s clear enough that we prefer pleasure to pain (and those who ‘prefer pain’ should stay with this article a little longer). Dopamine is a chemical found in the brain and because of it we ‘learn’ to anticipate that  ‘this’ brings ‘that’.  We learn so well that the expectation excites our pleasure senses even before the reward arrives.

If the reward does not arrive then we have made a mistake.  It follows that we must learn from our mistakes all the time.  To learn, to create reliable expectations, we must recognise the mistake, understand it, resolve it and then practise the solution. Our expectations are then ‘rewarded’ appropriately.

As advocates the fact that we’ve made a mistake is often all too obvious.  The witness does not reply as expected, the decision maker is all too clearly unimpressed with our submission.  The gift the teacher or mentor can bring is to point the way to understanding and a solution. But it’s the practice that is then the key. No practice or too little practice entails insufficient learning. The same mistake will then recur.

The excitement of getting it right once does not equal a usable skill.  Getting it right once shows a capacity.  Getting it right a number of times demonstrates a learned skill.  I make this point because one of the consequences of ever shorter intensive programs is that there is insufficient time for practise of each and every practical skill that is introduced during the program. There is also insufficient time to make the many mistakes that are a prerequisite to mastering the skill so that it’s ‘on call’ when needed.

For advocacy teachers a teaching problem is how to maintain student motivation during the essential practice exercises. Lacking any ‘born with’ ability for mathematics or language acquisition I always found the essential ‘practice exercises’ in those disciplines to be tedious. Lacking any motivation, other than fear of failure, my mind never reached ‘beyond’ the exercise to creative links. Most advocacy students are motivated so the problem is not so acute; however, it is still there.  As teachers we need to find materials, and follow methods that enliven and sustain that motivation throughout the practice.

In a perfect world (perhaps only a decade away) we will have the advocate’s equivalent of the pilot training flight simulator:  our students will be engaged in a virtual trial in which the variable answers from witnesses and questions from the judge will allow instant feedback followed by further practice to get it right.  In our real and present world, however, we must search for the more mundane but OK materials and methods.

Another problem that arises from short intensives is overload. Apparently our brains can only handle a limited amount of information at any one time. Supply too much and the ability to sort the wood from the trees is lost. When the prefrontal cortex is overwhelmed the person can no longer make sense of the situation. ‘Correlation’ is confused with ‘causation’, and people make theories out of coincidences.  In short, beware!

A challenge for we advocacy teachers is to examine whether our teaching sufficiently breaks a skill into its constituent parts, whether we create adequate ‘mistake’ opportunities, and whether we provide enough practice for the basic skill to be properly embedded.  Moreover, do we give the student the capacity to self reflect so that understanding and resolving are possible – either by seeking advice from a properly experienced person, or working it out solo?

The challenge for good advocates is effective management of extensive knowledge and experience. Often enough that stored knowledge and experience will bring them to the right ‘intuitive’ decision, but how should an advocate build a thinking approach that allows for further refinements as the skill and knowledge increases? [This ‘challenge’ is adapted from: K. Anders Ericsson, ‘The acquisition of Expert Performance as Problem Solving’, at page 75, in J.E. Davison & R.J. Sternberg, The Psychology of Problem Solving,  2003, Cambridge University Press.]

Whether novice or experienced, whether teacher or student, we can improve our decisions (eg. on case analysis, structure of chief and cross, reaching the audience in submission) through simple thinking techniques such as adopting an outside view, considering the opposite, or challenging ourselves to discover the root cause of a problem. I observe that credible science, and proper case analysis would always apply those approaches. Put another way, an advocate and an advocacy teacher must think about ‘how’ one thinks. [This solution is partially adapted from:  B.R.Newell, D.A. Lagnado, & D.R. Shanks, ‘Straight Choices’ at page 214, 2007, Psychology Press.]

The ‘pay off’ for accumulated skill (aka wisdom) is that the twinges, the gut response, the intuition are not superficial.  On the contrary, they reflect the distillation of all that has gone before, not consciously perceived, but being put to work at the right time.  It is because so much of that process is ‘deep’ that it is impossible to precisely explain ‘why’ or ‘how’ it came to be applied.

Somewhat surprisingly it is possible to ‘overthink’, that is to be consciously asking questions to self so often as to cut oneself off from one’s own wisdom. The result is to throw out ‘the known’ and reach a poor decision.

By the way, those advocacy teachers who still think that seven minutes of  student performance followed by five minutes of teacher critique is acceptable and useful to the student need to read and reread all the above until the penny drops.

Reaching the Audiences

We all want to make the right decision, and that’s the case whether we are jurors or judges.  How we ‘frame’ the problem, how we reason our way to the solution is influenced by our background , but we still like to think that we get it right.

Promise something good and people respond well just on that expectation.  The placebo effect (that is, feeling better because you’ve been told it will help) works apparently because that part of the brain which senses pain decreases its assessment of the pain in response to the expectation of pain relief.

Given the mind numbing effect of much court room evidence (surely ‘painful’ is not a misnomer) the promise by an advocate to bring interesting evidence may well cause the audience to pay more attention. Also naturally contributing to audience interest is their inherent wish to sympathise with the plight of others.  Such altruism ‘feels good’.  At its core ‘moral decision making’ is about sympathy: for example, we abhor violence because we know it hurts. The notion that an effective case motif is one that taps into these audience attributes of interest and sympathy seems reasonable.

An intriguing example is this visualising insight: when you want the audience to ‘see’ a person in a crowd then always use the mode,  “ X a whole number OUT OF Y a whole number”.  Using a percentage equivalent does not engender the same audience reaction. Apparently the problem with statistics is they don’t activate our moral emotions. 

Of especial interest to both advocates and judges is that the moral decision – the feeling (aka the emotion) - comes first.  The rational argument with all its ex post reasons follows the moral insight (however badly or well based that might be). Those in power, such as judges, business leaders, politicians, can become socially isolated. In that environment they don’t respond to other people’s situations as the sense of sympathy is displaced by other feelings. Their ‘rational argument’ flows from a different starting point and hence may be heartless, impersonal, indifferent to the plight of others.  That is not to say that their decisions are necessarily wrong, only that the manner of communication is bad. One useful tip to redress this tendency, given by  a famous judge to his brethren was, ‘Always write for the loser’.

Despite the ‘primacy’ of feeling it is possible to use the ‘thinking brain space’ (the prefrontal cortex) to overcome an emotional push; however, this requires very deliberate, very disciplined thinking.  An example of such discipline is seen in the thinking that is required to overcome our desire to avoid anything that smacks of loss, called – aptly enough – loss aversion.  So strong is our aversion to loss that we behave irrationally, becoming blind to the advantages of otherwise attractive options. A well known example is that faced with a falling market otherwise savvy investors sell their good performing stock rather than offloading the stocks that are performing badly.

I’m wondering whether this phenomenon is seen in the courts when an advocate sticks with a losing argument rather than refocusing on the more attractive argument or arguments that may bring success.  The best advocates, of course, are able to read the signs, listen to the messages from the bench and change course. Not only do they just know, but when that is not enough they can think beyond the norm.

Hugh Selby ©  March, 2011

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.

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.

Co-opting their witnesses to your case: another example where your argument is your cross-examination.

The previous article exploring the link between your case argument and your cross-examination took as the working example a criminal assault case with the defence arguing ‘self-defence’.

This article applies the approach set out in that previous article to another example. The reason is to reinforce the key concepts of: co-opting their witness to your side as much as possible; being pleasant as long as possible; being actively responsive to their answer/s (whether the answer is expected or unexpected); and, adopting a presentation style that draws the audience to what you are saying and how you are saying it. See the previous article (available here) for a fuller statement of relevant concepts.

Scenario.

The accused is charged with ‘criminal breach of trust’, the elements of that offence being that:
a. the accused was in position that required him to invest funds belonging to others in a specified way; and,
b. any departure from those specifications required the prior consent of the beneficiaries; and,
c. contrary to those specifications, and without consent, the accused handled the funds in other ways.

The brief facts are that the accused was a member of an investment committee that was responsible for investing the surplus funds of a number of bank employee organisations each of which nominated a member of the committee. That committee set up a sub-committee of three persons (the accused being one) whose responsibility was to trade these funds in various ‘low risk’ investments.

Over several years the sub-committee made written reports to the full committee in which the purported investments were set out and a trading profit was always noted.

An audit uncovered that there had been a number of unauthorised speculative investments and that a good proportion of the funds had been lost.

Of the three members of the sub-committee one had played no part in the investments or the preparation of the reporting statements, a second had died before the matter was discovered, and the accused admitted to making the bad investments but claimed that the dead man had assured him that a majority of the investment committee had approved these more risky investments. Both the dead man and the accused had many years of experience in the banking industry and were ‘senior’ staff in their respective work places.

You are to imagine that you are the prosecutor. You have established from the remaining members of the investment committee – several having died – that none of them discussed any variation of the investment rules with the dead man or the accused. However, the defence has ‘suggested’ during successive cross-examinations that these survivors cannot speak for those who have died. Further, that these survivors have no reason to acknowledge such conversations because to do so would shift at least some of the blame from the accused to them.

The accused has given evidence consistent with the above brief facts. Cross- examined, inter alia, about the false and misleading financial statements he claimed that the dead man told him to do it that way because that’s what the investment committee members wanted.

The defence now calls a strong character witness who speaks to the general good character of the accused. This witness, a senior executive who is highly regarded, has known the accused throughout their working lives in the banking industry.

Your task is to cross-examine this witness.

How to Prepare and Perform

Please note that the scripted questions used in these illustrations are used only to illustrate an approach to questioning. The use of ‘pre written’ questions in real cross is NOT recommended because it dangerously assumes that witnesses are compliant.

A cross-examiner who is imbued with the single-minded notion that cross is about ‘attacking the witness’ will tackle this witness with such questions as:

Q: You’ve been a friend of X (the accused) for many years?
Q: So you don’t want to see him in trouble?
Q: You want to help him don’t you? [This is just a variation of the over used cross of an accused’s mother, a cross that wants to suggest that any good mum simply can’t see badness in her wayward offspring]

Followed by a run such as the following:
Q: You’re a senior executive?
Q: You got there on merit?
Q: So you know what’s expected on financial reports?
Q: And you know that the financial reports prepared by your friend, the accused, don’t comply with those expectations?
Q: Yet you still come here, take an oath, and tell us that the accused is a good chap?

Which is intended to be, and is, a belittling of the witness. The cross-examiner feels smugly successful and sits down having, however, failed to consider this simple question, “How does all that advance my obligation to prove my case beyond a reasonable doubt?”

A cross-examiner who is focussed upon, “How can this witness help our case?” will see a great opportunity in the long term friendship between the witness and the accused.

Opening topic: Let’s start with your friendship with X (the accused).
Q: You met when both of you were at new employee training?
Q: And that was how many years ago?
Q: Both of you have spent your working lives in the banking industry?
Q: And you’ve done very well?
Q: I see, looking at your impressive resume, that you spent a period in charge of bank staff training?
Q: And X worked with you there for a time?
Q: And both of you left to take up promotions?
Q: Are there any photos or mementos of the two of you? [cross-examiner doesn’t know the answer but it’s risk free. If the witness says, ‘No’, the cross-examiner moves on. If the witness says, ‘Yes’, then proceed as follows]
Q: It’s nice to remember good times isn’t it?
Q: And, as you’ve told us, there is a lot of good in X?
Q: Which you’re happy to share with us today?

Topic transfer: Let’s talk more about training.
Q: Tell us, in simple terms, the objectives of that ‘new employee training’ [Open question, deliberately so, with the intent of having the witness think as a trainer and executive about banking and banking standards rather than friendship.]
Q: You mentioned ‘accuracy’ in that last answer. Please give us a few examples of where that accuracy is important in banking [Open question, again, and for the same reason as before.]
Q: You referred to records accuracy a moment ago. What are the consequences, as pointed out to new employees, of inaccurate records?
Q: You agree then that ‘trust’ requires accurate records?
Q: We can take it then, that accurate records and trust are interlinked concepts in the banking world?
Q: And staff, all trained staff, are expected to understand that link?
Q: And act on it at all times?

Topic transfer: Let’s spend a little time now on banking agreements.
Q: When a customer applies for a new account there are forms to be completed? [Judges and jurors are bank customers]
Q: Accuracy is expected?
Q: When a customer applies for a credit card or a loan of any sort there are forms to be filled out?
Q: Lots of detail?
Q: And the customer must take care to be full and frank?
Q: So bank staff are accustomed to detailed agreements?
Q: And the expectation of being full and frank?
Q: Would you agree that it’s second nature to check the documentation?
Q: For completeness?
Q: For accuracy?
Q: There are no exceptions are there?
Q: From time to time agreements are changed?
Q: Such changes always being noted in writing?
Q: So that there is a clear record for those who come after?
Q: In the interests of accuracy?
Q: And of trust?

Topic Transfer: Let’s now talk about matters among experienced banking people.
Q: You’ve seen the investment instructions to the subcommittee?
Q: Those instructions cannot be read to encompass X’s investment actions between this and that dates?
Q: As a banker, an experienced banker, you would be looking for a written change of instructions wouldn’t you?
Q: You’ve not been shown any such change of instructions?
Q: You’d want such a written change to the agreement to protect all parties wouldn’t you?
Q: You’d want such written instructions to preserve that accuracy that was stressed at new employee training?
Q: You’d want such written instructions to show the trust you told us about?
Q: That’s the kind of accuracy and trust you wanted to stress when you were in charge of training?
Q: When X was working with you?
Q: When X was training others in the importance of that accuracy and trust?
Q: That accuracy, that trust, those are fundamentals for bankers?
Q: Not forgettable?
Q: Not avoidable?
Q: Not optional?

As an interesting variation suppose that the witness is one of those dominant individuals who will not be thwarted when there is something they want to say. Non-responsively to one of cross questions the answer comes:

A: Let me tell you that if X says that Y (the deceased co- member) told X to do it in a particular way then that is what happened. No doubt about it.

The cross-examiner who is uncertain or too confident will immediately re-assert control with a comment such as,
C: Just answer the questions that I ask please.

And, in so doing, fail to appreciate the ‘living’ nature of cross. Rather better to roll with the witness as follows (and repeatedly take controlled risk):
Q: So then, did you have other experience of Y telling someone to do something in a particular way?
A: Yes
Q: Was that someone you or another person?
A: Me
Q: And was Y telling you to do something that was, in terms of your banking practice, OK or not OK?
A: Not OK.
Q: So did you do it? [ Comment: ah, a magic moment. Let’s enjoy the alternatives]

Alternative #1
A: No
Q: And that was because of your training?
Q: The same training that X got?
Q: The same training that you and X gave to others?

Alternative #2
A: Yes
Q: So X’s action is just history repeating itself?
Q: And you come here to tell this court that two wrongs make a ‘write’?

Hugh Selby ©
January 2011.

Reaching for the Tingle....

Dear Friends:

I have been thinking a lot lately about what really exists at the core of my approach to teaching advocacy. Why do I do the things that I do? I must confess that the approaches that I love the most are the ones that stray far afield from accepted practices, but I console myself with the belief that they are grounded in other fields from which all advocacy professors might want to learn. I am always questing for something more. Like all of us I can nail the NITA critique in my sleep, but I have done that more than once and felt that I let the person I was trying to teach down – I had not gone far enough into the darkness with them to help them see the light. I have come to believe as a core value that if the student is brave enough to try then I should be brave enough to teach them, using whatever method is necessary in that moment to make a difference for the student.

When I first started teaching it was with other attorneys that worked for me. I was always focused on the end result – the trial. The personal dynamics between the client, the witnesses, the advocate and the judge were always fascinating and we worked hard to find the message that would prevail for that specific set of circumstances. From time to time we would do the obligatory NITA style training, but almost as an afterthought.

Over time I turned to fundamentals as a way to create a baseline level of competency, and I still love advocacy fundamentals as the starting point for everything I teach. I even titled my trial advocacy text “Fundamental Trial Advocacy,” and I firmly believe that some of our skills should be automatic. A good critique on something as simple as word choice, body position, filler words, pauses, or any of the other “bread and butter” teaching points is always time well spent – but it rarely makes me tingle. I reach for the tingle whenever I can – do you?

What do I mean by reaching for the tingle? The tingle is when the student has a breakthrough. That breakthrough can be skill performance specific, a deeper level of personal understanding, or a connection with the other participants. These teaching moments come when you see that the student has an issue, but you know that the fix for that problem is going to require you to trust the student, possibly embarrass yourself, and risk failing in front of a group of students to whom you have been identified as an expert in the field. Do you reach? Do you grasp for that moment? Or do you turn away into the safety of something else?

I think the students know when we go out on that limb with them. I believe at an internal level they appreciate it when we expose ourselves to failure, to ridicule, to judgment – just as they feel exposed in that moment. That is a gift that the teacher has the power to give to the student - and it gives them power in a place where they feel powerless. I like to think of it as a student centered approach, and it reflects some accepted paradigms of adult experiential learning. They become responsible for their own learning. Let me share how I go about it.

I usually start by asking the student how that felt, not how they think they did. I like to begin with reflection by the student because it helps me see where they are in their growth. Different students will focus on different things. How they focus, what they focus on, and the way they choose to share it all present opportunities to help me identify the right teaching moment. I build outward from the things that they share with me because that often identifies the “thing” that needs to be addressed. I combine this with the observations that I have made about that student over the course of the program. There are many different opportunities to get to know these students, each of them are moments that provide me with information that becomes crucial when it is time to reach them.

I want to get them into the moment of the performance so that together we can identify what canbe encouraged to grow, what should perhaps be pruned back to a reasonable level, or sometimes completely weeded out. I rarely ask the student how they think that went because they are usually hypercritical or simply blow the answer off. I want to know what they were feeling when they did it, physically, emotionally, mentally.

After they tell me I ask them if they will give me permission to help. Once they give it, and they always do, I ask them again how they are feeling – starting with their current physical state. This is the point where they begin to become responsible for what they are about to discover. Sometimes I get push back. When that happens I have them take a deep breath, close their eyes and picture what just happened. I then ask them to share the physical sensations they were experiencing while they performed. I focus them on action verbs, clear descriptions – the same word choice issues that we teach on direct examination. I then build my next question off their response. They are often very quick to identify what is bothering them, and it opens to the door to my advice. We begin to work together to solve their problem in a way that they accept and can implement. This creates a short back and forth that is really a shared conversation. It is also a sharing of the spirit, an acceptance of our shortcomings and recognition of the trust that we are placing in one another as teacher and student.

These become transformational moments in the life of the student – if they are ready for the transformation. Remember those moments in the courtroom when everything slows down, the words flow and you hold the jury, or the witness in the palm of your hand? Remember that feeling that you had when everyone in the room knew at a primal level that something very important had just happened in court? You can have that same feeling when teaching – all you have to do is reach for the tingle.

Enjoy!

Charlie