Editing Ourselves and Others: What We Can Learn from Writer's Workshops

Mark Caldwell sent me a link to an Opinionator article on writing workshops. Written by Amy Klein, the article is entitled, The Writing Workshop Glossary. It's a tongue-in-cheek look at the world of writing workshops. Having attended a few writing workshops myself, I found Klein's observations enjoyable to read, and right on point. As Mark pointed out to me in an email, the piece also has some application to what we do as advocates and advocacy teachers. Especially as advocacy teachers, we spend a great deal of time listening to the work of others, critiquing it, and offering suggestions for improvement. These efforts--like the criticisms of the writing workshop participants in Klein's article--are not always appreciated by the recipients, especially in the moment. Nonetheless, learning to listen to the viewpoints of others and adjust one's work accordingly is key to the development of advocates.

Selby Reviews "Speaking Secrets (Sex and Sexuality as Public Property)"

Book Review of Speaking Secrets (Sex and Sexuality as Public Property), Sue Joseph,  Alto Books,  www.altobooks.com.au, 2012, paperback,  ISBN 9781921526183,  Aus. $24.95, also available at Amazon.com

I heard about this book when the author, Sue Joseph, was interviewed on radio about it. Talking about people who live with 'taboos' and how to interview them caught my attention because advocates require that witnesses speak secrets in many court cases, and especially so in sexual assault trials.

Tweeting-For Better Case Analysis

TWEETING - FOR BETTER CASE ANALYSIS

By Professor Wes Porter

Professor Porter teaches evidence and advocacy courses and directs the Litigation Center at Golden Gate University School of Law 

Teaching case analysis is always a challenge.  The skill of case analysis is critical for our courses and mock trial teams - and for a career in litigation.  While jury addresses, witness examinations, and motions in limine involve case analysis, we miss something when this skill is not isolated from other parts of trial presentation.  We sought to better segregate the skill of case analysis and diagnose related issues independently.  We focused more on case analysis in our advocacy curriculum and created a consistent, written requirement (expectation) to segregate the the skill of case analysis.

Our target should be the students, not law schools

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

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

Courtroom Advocacy for Beginners:shaping an online approach

There are various reasons for more and better use of online resources in our advocacy training.  For example, lack of teaching space, shortage of sufficiently experienced trainers, students who want to attend but can't because of work, timetable, and home task clashes, along with teaching and learning efficiencies such as recording one person explain a concept well, and offering mixed learning modes (eg. reading and listening).

Stetson's online Advocacy Resources Centre ( ARC) offers a useful collection of recorded presentations and interviews about various aspects of our craft.  If you haven't yet used the ARC then click on the link to the right of this posting. You are bound to find items that you'll want your students to see, reflect upon, talk about, and enact.

Googling 'advocacy' + training brings up a very mixed bag of materials.  For example, Charlie Rose's recent clips ( shared with you on this blog), along with Wes Porter's, present material with an informed awareness of what advocacy students need to master.  On the other hand there are also clips, often thankfully very short, that are cringe inducing.

Hopefully most viewers will not find the following three clips 'cringe inducing'. They represent an experiment ,on a nil budget, to present the principles of beginner advocacy in a way that the beginner could follow, stop and start and replay, try out something, and complete with more awareness than they started with.

Here is an explanation of some of the 'features', included to help those who decide to make video clips avoid some of our errors and benefit from whatever strengths are found:-

1.  The narrator is never seen.  This is in sharp contrast to Charlie's style.  The choice was made because we want the audience to listen carefully to the narration while viewing the messages (text screens and court room shots);
2.  Whiteboard 'case analysis' shots are deliberately visible to the audience during samples of direct and cross of Jack. This is to encourage reinforcement.
3.  There are obvious mistakes in what the student advocate does. Those have been left because too many people think this skill is easily acquired.  We know better.
4.  There is no example of either the opening address or closing.  There should be, along with on screen annotations that comment on strengths and weaknesses;
5. Most screen text shots contain more text than is recommended.  This was a trade off: was the viewer to be encouraged to mostly listen or mostly look?  We opted for 'mostly listen' (but see also point 1 above).
6.  At the end of each video there should be a short summary of what has been done.
7.  There should be more 'You do it' points throughout  - where the user is told by the narrator,
'Now, try this....'.  For example, 'Set up your teaching room as a court room.  Move through the roles of lawyer, witness and decision maker.  The witness is to tell the Jack and Jill story three times with only this difference: look at their lawyer; look towards the decision maker; look down at the witness table.  Comment on how you see the witness's position affecting their credibility'.
8. Despite writing the script and predetermining shots we still found, in the editing phase, that we needed more visual material AND more narration.
9. The time for editing is an 'n' multiple of the writing and shooting time, where 'n' is a larger number than your patience.

Please do have your students and colleagues try out the videos.  Developing a good online teaching advocacy methodology is a challenge that we must meet.

This first of the three videos is about court room position, case components and case analysis:

This second of the three videos is about opening, closing, and direct:

And, this third of the three videos is about direct, cross, and objections:

Hugh Selby (c)  February 2013.

Lest We Forget . . . The Importance of Good Storytelling

While hyperlinking my way through cyberspace today, I stumbled on a great article in Psychology Today, The Inside Story, about the central importance of storytelling to the human condition. I intend to share it with my students, because it expresses the why of good storytelling much better than I've been able to. In my experience, many advocacy students experience difficulty finding the story at the heart of the case. This affects their case analysis, presentation of witnesses and ability to persuade a jury. So I'm always on the lookout for ways to help teach them this valuable skill.

“Scrimmage” – I hardly think so! IT’S TRIAL BABY!

"Real" Trial competition: For two years now I have had the privilege of meeting with the outstanding faculty and attendees at the Stetson School of Law, EATS program. During one of the lunches there, Chris Behan and I were talking about creating a Voir dire competition. Many others were there and contributed to this conversation but Chris and I agreed to "make it happen." Yes it was very difficult to get off the ground. Football, trial teams and classes were just some of the busy fall filled conflicts that attempted to intervene at every opportunity to halt our efforts. We switched who would host at least three times. The point is that nothing worth having comes easy. Then there was the sign up for the teams. First there was overwhelming interest and by three days before the competition, attrition set in due largely to fear in my opinion. But we fielded two teams of four and off they went to Carbondale. I personally do not subscribe nor shop at the store, "Excuses R Us." Therefore I do not accept discount or gift cards for that store from others. We found eight students who were willing to have a real trial experience and they did! We are thrilled. Here is our take on the wonderful weekend in Southern Illinois.

1)      We all wanted a "real" trial competition. So Chris and I decided whoever gets the verdict wins. NO points, no score sheet, no judges, just a jury and a verdict. REAL!

a.      My comments: I loved that there was no score sheet and no set of criteria to "coach" the team toward. Instead, there were real people and real connections and relationships. For the first time as a trainer of a competition I felt as though I were "really" training something worthwhile and significant not false and pretend. This seemed real to me. We focused on Voir dire and what issued the jury would struggle with and how to identify those in ourselves instead of whether the judge will like this or that. It was so refreshing and realistic that I am a bit grumpy today, going back to my mock trial teams and being ever aware of the score sheet. Last year I did not coach my teams towards any score sheet, and I think I am done with doing so. I am more interested in real advocacy and if the judge's cannot appreciate nor understand it, then so be it. Perhaps we won't win the championship but we will win at trial. How can it be productive to teach students that there is so much difference in mock trial and real trial? I have said a million times, now in a real trial we wouldn't do this or you would do that. I am done with those distinctions. It is either advocacy or not. If judges are too old fashioned and set in their ways that they cannot see that persuasion is an art, and then they will not appreciate our art. But we are going to be artists!

2)      We also wanted the "real" components of the trial. Pretrial conference, pleadings, jury instructions, witness lists, exhibit lists and negotiations with opposing counsel. Therefore the teams were required to conference call each other, exchange exhibits, witness lists and hammer out the jury charge ALL IN ADVANCE of the competition. This was significant and effective. We only gave the teams 14 days to prepare, from seeing the problem for the first time to trial. I recommend that we cut that down to 10 days. On our end the extra four days were spent whining and complaining that it was not enough time. Once inside ten days they finally got to work. So as you can see, I am trying to eliminate the whining.

a.      My comments: My teams would come to me and say, "they want this or that in the jury instructions." My answer was always, "work it out, that's what you have to do in real life." In fact I am embarrassed about how little I did to coach or help these teams. I instead used my time to focus them on problem solving and working together and with their opponent. Compromise was finally reached about midnight as I understand it. I was happy for them, which was the first major victory of this competition. They figured something out, together, by themselves! Wow. I wrote it down!

Coaching: First let me say that Michaelle and I were so busy that we did not have more than two "appearances" with the teams. The one that I focused on was the Voir dire. I had them conduct a Voir dire while I watched and critiqued them. I did nothing to help them with their witnesses, opening or closing. If a student came to me I assisted them, but I did not have nor organize any practices for them. It was their responsibility and they were in charge. I acted like a senior partner, who was available as a resource but not directly involved in the case. I felt like this was success or victory number 2. Sure, I could have coached them up and presented them for victory, but that was not the goal. Instead, I was preparing them to be real trial lawyers who have to figure things out on the fly and on their own. I was a resource, for example, they asked questions about the jury charge, the procedure, and the rules of evidence. I eagerly answered questions, but did not have an agenda nor teach them. I do all of those things in class, they were all in my Trial Ad 2 course. So I did not find it necessary to repeat these classroom instructions and drills in this competition. I am proud to say that it felt very nice to have them being forced to work things out. Sure, I will suffer some criticism, "he didn't help us, he didn't coach us, and we could have won if he would have…."  YAK. I do not shop at Excuses R Us.

What they learned- All learned something. All participated and all were taught the value of preparation. Sadly, some were confronted with the realization that you cannot "fake your way" through trial. Some were also bluntly reminded that they are not "all that." Good lessons. But the real learning occurs more slowly, like the making of a fine wine. I have had sips of this sweet and powerful elixir all week. One student told me, "I see what you mean; you win the case in Voir dire." Why I asked the student? His response was that it was in Voir dire that we focus the jury on what is to come and prepare them and explore their feelings on the issues that will be presented. He learned about bias, as he would have struck some of the jurors for cause because of their bias. He learned how powerful bias is and how it works to affect our judgment and impartiality.

Another student explained that the trial was in hand. But it was lost because "we fell apart." He told me that their theme evaporated before his very eyes. He was shocked that all they prepared seemed to leave when they finished opening. The pressure of the court, the jury and the situation caused them to abandon their game plan and to merely try things off the cuff. These things did not work and were in his words a "disaster." He learned a valuable lesson that will never be forgotten. He also learned a lot about team work. His insights were outstanding as to working with a co-counsel and being on the "same page." 

Other students were overwhelmed by the realization that four teams had the same facts, the same witnesses and the same everything else and yet there were so many different themes, presentations, styles and results. I could not think of a better way to explain that advocacy matters than this lesson. HOW you present your case and yourself make all the difference. They learned this and experienced it for themselves. This lesson may have been the most valuable, but time will tell.

What I learned- I knew for a long time that we need to get students real experiences. That is what experiential learning is all about. But the extent and the power of this setting is a power factor that I had not considered. This raised the intensity of the learning to the power of ten. Sure I have members who are disappointed, not in the experience but in their personal performance. Sure I have team members who are blaming me, the jury, the judge and whatever else is available. The truth is however, that in class this week I had something more real and more personal to discuss than ever before. No longer was it my trial experience that I was talking about, it was THEIRS. YOU cannot imagine how that translates into opportunities for learning and retention of the learning like never before. I am excited and anxious to do this again.

I also learned – I need to use my trial team members as "consultants" for these teams. Chris did this and my teams were quite envious of this fact. Genius idea. Watch one, do one, teach one is the theme there. I frankly, did not have the time to invest in coaching these teams four hours per day. But my other teams, my alternates, my shadow teams certainly did but I failed to include them. I will make a note for next time and not overlook this outstanding resource. I also learned that the beautiful certificates that Chris did, framed and personalized were a very appreciated and added motivation. The teams who earned these can be proud and those who did not want another chance. This makes me smile.

For the future – I believe for the future I will assign people to assist the trial team. Paralegal, associates and senior partners. I also believe that I will give them more guidance on the trial notebook and the theme work. The teams that carried their theme through the entire trial and had the jury repeating their theme to them at the end of the trial were winners. No surprise to anyone there. The teams who failed in this simple task did not win the verdict, but they were winners in the game of learning. These teams will not ever take the framing, focus and theming of a case for granted again.

I agree with all of the comments that Chris made on his blog. What I want to add in closing is to add my support for these things and not restate them. I must however, report that Michaelle tells me that the courtesy, the professionalism, and the food were the best ever! I understand that the food for the dinner was catered in and they ate it at the law school. The dinner together is a very important part of this and I am so grateful and appreciative for Chris's efforts during this entire thing. I am also very thankful for Michaelle, without whom this would not have occurred.

 Why I think this format is so helpful for students:  My story – I tried a case in Texas in a county of 350 residents. They summoned 130 for the jury venire Panel. That was 1/3^rd of the county. This county, King County, has no grocery story, no bank, no hotel and no place to stay. It is the headquarters of the 6666 Ranch and everyone in the county either works for the ranch, government or school. You have to drive 90 miles one way to get to a hotel. During the two week trial, the lawyers, the jurors, the judge and court staff were fed down the street at the school gymnasium. The defense team sat together, the plaintiffs together and the jury and judge at a separate place. It was buffet style; we took turns going through the line each day. The REAL trial happened in that gym. The four seniors of Guthrie high school and their mothers cooked the lunch for us each day. They served it with a smile and treated us as if this was the biggest thing to ever happen in the county, and it was!  I frankly hated the defense counsel in the case. I did not speak to them, ever. But something changed us all in that gymnasium. We began to see a side of each other that we had never seen before. We witnessed the humanity of it all. After the verdict the jurors, judges and defense lawyers all remained together at the courthouse. There were no winners or losers but just a group of people who suffered through this trial together, who ate, prayed and communicated with one another. I was shocked; the verdict was the largest in county history. I would have thought the defense teams would be mad and leave. They stayed and talked with the jury afterwards and said our goodbyes. The case was appealed and finally resolved by settlement. But never again did I have a negative thought for those defense attorneys, the court or the jury. Instead I had a greater appreciation of their role, our community and the struggle for justice. It is not us and them, it is Just US.

Michaelle's comments:   There is not much to add as I agree with Rafe.  This was an amazing experience for the students, but also for me as well.   Being able to listen to the jurors' feedback after the trials was so much more beneficial than my experience of chasing after them as they rush to leave the courthouse after trial.  That the students have this experience now will no doubt help them in their future trial careers.  Thank you so very much to Chris Behan and all the students at SIU for an enlightening and enjoyable weekend!

--Rafe Foreman and Michaelle Tobin

University of Missouri at Kansas City School of Law

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!

Sealing Case Analysis with a Telegram

Sealing Case Analysis with a Telegram

My good friend (and high priest/shaman of advocacy teaching) Josh Karton created an innovative advocacy exercise called the 10 word telegram. The object of the exercise is to boil the essence of a case into ten words. Those ten words must explain the problem, identify the theme at the heart of the case, and request specific relief. This exercise is one of the most difficult, yet rewarding, experiences a young advocate can have.

Consider for a moment the genesis and the genius of the exercise. In a bygone era when telegrams were expensive, every word had to be freighted with meaning. The incentive to send the right message at the right price to obtain the desired effect or result required considerable ingenuity, creativity and precision. There was no room for ambiguity, no tolerance for wasted words. The recipient of the telegram was unlikely to be in a position to request clarification or ask follow up questions.

Perhaps the closest we can come to the 10 word telegram in modern usage is the text message or tweet, both of which are limited to a discrete number of characters. The incentive for precision is lacking in these forms of communication, however, because they are cheap and instantaneous. If I send an unclear text, the recipient can ask for more information immediately, as many times as necessary before the message gets through.

The 10 word telegram forces an advocate to cut through the dense layers of legal jargon that have the effect of obscuring, rather than clarifying, the heart of the case. It is nearly impossible to create an effective telegram in a single draft; indeed, it can sometimes take a few hours to get the telegram just right. It is also difficult to do the exercise alone. Small groups seem to be ideal for creating good telegrams.

I've been using Josh's exercise to help with theme development. I usually assign students to do the exercise after their case analysis has been completed but before they work on opening statements. I've been pleased with the results of using this exercise for theme development.

Josh uses the telegrams as a launching pad for improving oral advocacy skills. Student advocates must present their entire case as a telegram as Josh coaches them on eye contact, voice modulation, pacing, emotion, emphasis, gestures, body placement and movement. I've seen him work with a single student on a single telegram for most of a morning or afternoon advocacy teaching session. I'm always amazed at how much can be contained in, and flow out from, ten words.

Lacking Josh's theater training, I haven't used the telegram exercise to work on other advocacy skills. I hope to improve my own observational and coaching skills sufficiently to be able to do that at some point in the future.

But in the meantime, I continue to use the exercise for theme development. And recently, I've discovered another, closely related use for it. The 10 word telegram is a great way to help crystallize a case analysis exercise.

After reading Hugh Selby's posts on the circle method of case analysis, I decided to experiment with case analysis with my fall trial team. We started off with a student-conducted circle analysis. I then assigned them to use that analysis as the basis for a traditional case analysis memorandum, which includes fact summaries, witness summaries, an elements and proof analysis, legal and factual theories of the case, and an evidentiary analysis. When they had completed their (lengthy and exhaustive) memoranda, we met again as a group to discuss what we had learned from the case analysis. I then separated them into plaintiff and defense teams, with the task of producing a 10 word telegram to capture the essence of their case.

The telegram exercise was an amazing capstone to the case analysis experience. It was a lot of work--hard work--but it brought everything together in a way I haven't seen or experienced before.

I believe the exercise can be a springboard to assist in teaching many other advocacy skills. I am interested to know if others have tried this exercise, or others like it. If you have, please share your observations with us in a comment to this blog post, or write a post of your own and email it to cwbehan@gmail.com for publication in this blog.

Sent from my iPad

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.

Case Preparation and Case Delivery: seeing your case and theirs.

When we sit down with the witness statements, along with the charge sheets or pleadings, we want a method to analyse and prepare the case that we know to be comprehensive, motivating, efficient, and successful.

The following method works because:
1. It respects the audiences that we must persuade;
2. It reduces the likelihood that we’ll overlook some issue of law, fact, witness, or environment;
3. It provides one seamless tool that we take from our preparation stage into the courtroom;
4. Whether we work solo or with others (be they lawyers, paralegals, students, competition team colleagues, our witnesses) this method encourages a multi-perspective approach to the tasks of preparation and case delivery.

Trial preparation is about recognising the strengths and weaknesses of your case, planning a trial delivery that reflects that recognition, and – so far as your native skill and experience allows – ensuring that you have given yourself the best chance to deal with the unexpected.

The unexpected is the norm for all trial work. A contest, with a cast of characters each of whom has their own agenda, inevitably means that a trial journey will produce most of the emotions from despair to hallelujah, your hope being that because of your preparation and skill you’ll have more of the positive than the negative.

Being quickly and appropriately ‘reactive’ is the hallmark of the good advocate, just as it is the hallmark of top- level performers in every field (be they sportspeople, surgical teams, artistic performers, or commanders of military, police and emergency response units).

Such reactive insight does not bloom in a blinkered environment. It draws upon the broad domain. Real cases, unlike case files for teaching or competition, do not observe ‘the only facts are the ones in the statements’. Real cases always have missing facts and they can be the most important in the case: knowing that one needs to find them, knowing how to find them, knowing how to minimise their absence (when your search efforts fail), and knowing when to reveal them is advocacy magic.

It begins, as does every magic show, with preparation. So let’s begin.

Recall a case that you lost but expected to win. This may be a real case or a student competition. It may be criminal or civil. What’s important is that you were so disappointed by your loss that it rankles. Your memory is sharp for the legal issues and facts in that case. It is even sharper for the reasons why you lost. Perhaps you forgot some point of evidence admissibility. Perhaps your key witness sank without trace in the witness box while you sat at your lawyer’s table speechless and impotent. Perhaps you overlooked an authoritative decision that went against you.

Goaded by these unpleasant memories take a very large sheet of paper (such as deli or butcher’s paper). Even better find a whiteboard. Whatever your choice the surface must be large. Now draw some pizza size circles randomly on the board. If you have just drawn three small circles in a vertical row like traffic control lights, or horizontally like the tail lights on cars, erase the effort and try again. Draw one circle for each element of that fateful charge or cause of action. Within the pizza write a caption identifying the legal element.

Now introduce the environmental forces. Use another shape for these, but once again the spread must be random. An environmental force is something about the case that you know will influence the outcome. You don't know this as a lawyer: you know it as a member of your community. It’s the elephant in the room. For example, a man who suffers from a mental illness murders his partner by cutting her throat. The defence is legal insanity. The environmental force is that the jury don’t want this man free in their community.

Need another example? A wealthy, powerful man is accused of sexual assault on a female hotel staff member who enters his suite. The alleged victim complains quickly. He says the interaction was consensual. It will be his word against hers. The environmental collision is power and success where lies are defensibly strategic on the one hand, while on the other the ‘how do we get by’ world of refugees, bare survivors in which lies about some matters (but not all) are daily bread.

Some, more cynical and world weary than I, might think of these environmental forces as those human prejudices that relate to fears and dreams, be that of race, religion, sexuality, mental illness, dark places, even appearance.

With legal elements and environmental forces out there in your space introduce the third and final free floaters: the witnesses. Name each one and then put around them the characteristics that your audiences are going to notice: stunning, police informant, decorated for bravery, suspected of fraud, criminal history, record holder, lacking confidence etc.

In this space of legal elements, environmental forces and ‘warts and all’ witnesses you now introduce the relevant, admissible facts. Attach each such fact to an appropriate element, force, or witness. A fact may attach to one legal element, or it may attach to several, as well as an environmental force, and more than one witness. The distributing of these facts forces you, the case preparer, to analyse and evaluate the strengths and weaknesses of your case.

Stand back from your display and taking as much time as you need absorb the information. Draw links between those places where the same fact appears. You (and anyone working with you) will now ‘see’ strengths and weaknesses.

For example, a plaintiff or prosecutor will be seeing: Do I need corroboration for that fact? If so, who is providing it? Do I have messengers who will be found credible by the decision maker? Is that fact in admissible form? If not, how can I cure the problem? Looking at that legal element and the facts that I’ve got on display am I short of one or more facts to prove that element at the required standard of proof? If I am short then what inquiries, subpoenas etc need to take place to fill the gap?

A defendant, looking at their version of the same visual will be marking those same strengths and deficits but asking, Will a focus on this, that, or those deficits (legal, environmental, witness or facts) be enough to show that our opponent cannot meet the required standard of proof?

By using thicker and thinner lines, various colours or both, you can mark up the stronger aspects of your case on all four parameters. You can ‘see’ which is your strongest legal element, who is your best witness, what are your strongest facts, and the environmental forces that are most supportive. Likewise you can see and mark the pitfalls and shortfalls.

You can now test these conclusions by asking ‘What if?’ and ‘What about?’ and ‘What then? This is the essential rehearsal for performance. At trial ‘intuition’ needs to be primed and this is how you set it up.

Experienced advocates will find that the above approach works well as either an efficient ‘solo’ preparation tool, or as a means of getting the best suggestions and inputs from any assistance (be that less experienced litigators, the client, witnesses).

If the case is not settled or plea-bargained before trial then the cross over value of this approach as being useful in both preparation for, and performance at trial now appears. We know the guideline to start and finish with strong points and to bury our weaknesses. We must prioritise everything we are going to present while responding to whether the decision maker is law focussed (bench trial) or fact focussed( lay jurors). Given that our case comes out of the mouths of our witnesses the most likely first cut for plaintiff or prosecutor is to decide the order of witnesses, then to fashion the order of topics to cover with each witness to ensure decision maker interest and confidence. That prioritisation can be marked on the diagram with whatever system for ordering people, legal elements and facts that is attractive.

Defendants meanwhile are preparing their cross-examination by marking their route of ‘cross indoctrination’ (see cross-examination articles in the blog index) through their visual analysis of their opponent’s likely case. They are picking one or more of fact, witness credibility, environmental force limitations and planning how to use their opponent’s witnesses as the primary means to persuade the decision maker that the case fails because one or more legal elements is not proved. If that fails then they too go into a pre planned development of evidence with their witnesses.

I like to think of that last step – the prioritisation- as being the time when the visual is converted from a two dimensional display to a 3D; that is, the prioritising brings to the foreground those aspects of the case that I must emphasise and pushes back those aspects that are less important. The visual display is now a 3D matrix because of the stronger and weaker links that have been drawn between the various legal elements, forces, and witnesses. This matrix is the primary tool at the lawyer’s table: it is both prospective (as to what needs to be done) and reactive (to deal with what has been done).

If you have followed the method outlined above then it should now be clear to you why you lost your ‘test’ case. It should also be clear whether another approach would either have won, or (as if often the only sensible approach in litigation) minimised the loss.

A recent article on this blog discussed technology that’s now available for the advocate in the court room. ( See courtroom technology in the blog index.)   Here’s my forecast. One of today’s law students with a programming bent is going to take the ideas in this article and write a program that will allow litigators to do all the above electronically. The basic work will be done on a clever whiteboard and instantly stored on the 3D pad of each team member. The matrix (just a permutation of CAD) will be responsive to advocate inputs: the strength measurement given to the links drawn between the elements will entail that as soon as the advocate reassigns a value to any component the entire matrix will respond with consequential changes to every other component, link and priority, effectively hinting to the advocate how to respond in real time to what’s happening in the court room.

The devil in me says that the hacker juror, journalist or saboteur will be hard at work aiming to get past the security of the legal teams’ electronic systems. And what then? Well, the opportunities for a John Grisham like thriller are awesome.

Hugh Selby © July, 2011  hugh.selby@anu.edu.au

Mock Trial Competitions 1: Competing Objectives

Cheryl Wattley is an associate professor of law and director of clinical programs at the University of Oklahoma College of Law. This is the first of two pieces she has submitted about the mock trial process.

As I watch my mock trial competition team enter the room for their beginning round, I am moved to reflect upon this experience that we call "mock trial". So, drawing from my clinical classes, this is my "journal" of the experience, thinking about the broader picture.

A recent posting lauding the skills that can be taught through the preparation for mock trials found me generally in agreement. There can be little dispute that there is no substitute for working through case analysis, preparation and conduct of witness examinations, and drafting of opening statements and closing arguments. Students invariably gain knowledge and insight from those experiences alone. Similarly, the opportunity to engage in trial activities with students who are strangers, who are not known, provides an element that cannot be duplicated in a single law school.

Even the stress and anxiety that the competitors feel is a valuable growth experience. But, even with those givens, I find myself wondering how we might maximize the instructional component of competitions.

I have worked with students in a variety mock trial competitions including those sponsored by professional organizations, law schools, and student organizations. The rules of the competitions vary. For some competitions, there are stipulated exhibits removing the need for evidentiary foundations. For others, creation of material facts is not only permitted, but the absence of any consequence tacitly encourages such imagination, a virtual equivalent to encouraging perjury. Impeachment by omission may be prohibited. Re-cross examination, which is not provided by the rules of evidence and exists only within the discretion of a trial judge, may be made an integral part of the witness examination, creating an expectation that it is a routine component of a trial.

These variables present me with a fundamental conundrum: because I believe preparation for competitions is an opportunity to work with students in the development of skills and techniques that they will actually use in court in the representation of their clients, do I teach to the "real world" or do I prepare the students for a competition? Which do my obligations as a professor dictate that I pursue? I firmly believe that law professors are fiduciaries, charged with the responsibility of using our best efforts to prepare students for the practice of law. At the same time, I realize that I have an obligation to my academic institution to actively work towards the building and maintenance of reputation and presence. Clearly, success at competitions has become one symbol of a law school's stature and a well used tool for promotion.

An experience at a well regarded, invitation only, competition illustrates my conflict. The case revolved around evidence gathered during a police interview. The problem described a scene where the defendant was sitting at a table, across from the interrogator, being asked questions. Much of the case revolved around the defendant's demeanor and understanding of the interrogation process. For the closing argument, one competitor dragged a chair from behind the counsel table and set it a few feet in front of the jury box. He delivered his closing argument seated in that chair to evoke images of the defendant. That presentation was received with great enthusiasm and compliments by the judges who awarded scores reflecting their endorsement of the presentation.

Putting aside my thoughts as to whether the expected articulate, persuasive closing argument would reflect the anxiety and apprehension of the defendant, it is the "drama" of that action that gives me the greatest pause. Most of the judges in the courtrooms in which I practiced would have asked me if I had lost the ability to use my legs if I sought to speak from a chair. If I had dared to be so bold as to move the furniture, my creativity would have been crushed as arrogance and insolence.

At another competition, again involving a criminal problem, one of the witnesses was testifying pursuant to a plea bargain. The problem very pointedly did not provide any sentencing information, allowing the argument that the witness was testifying with the hope of receiving a benefit. One team had the witness testify that she had already been sentenced and received a 10 year sentence with no opportunity for reduction, an outrageously high sentence for the amount of drugs involved. But this testimony made it impossible to argue that she was expecting a benefit. Because the competition did not have a grievance procedure for the creation of material facts, there was no scoring penalty for this fabrication. My students' performance invariably suffered because witness credibility was an essential component of their defense case and it was effectively gutted by this manufactured testimony.

These examples illustrate the conflict that frequently occurs between the artificial reality of mock competitions and the actual practice of law. My colleagues who have coached and attended other competitions frequently share similar stories. So, I am left asking: what do I do in coaching my students? Do I acquiesce to the creative, focusing upon earning the favor of the mock judges? Or do I worry instead about the real judges, the clients, and the profession and concentrate upon acceptable decorum and procedure?

I wonder also what message we send students when we encourage them to engage in conduct that would not be acceptable in "real world" settings. Will the student, having received positive feedback, be eager to engage in such dramatic presentations in a courtroom? What if the student does such a presentation and incurs the wrath of the judge, what responsibility should be borne by the professor who encouraged such presentation? What of the ethical boundaries that are trampled by the manufacturing of testimony? Does such invention make the possible subornation of perjury one step closer and more palatable? Do we create a dynamic where lines that are not always crystal clear can become even more blurred?

Perhaps my thoughts are too bleak, my observations too melodramatic. Perhaps I have overlooked some asterisk marked note that provides a cautionary instruction. Perhaps we are not headed down a path analogous to profit making sports competitions that encourage and engender conduct that values winning above learning.

But if my concerns have merit, then I believe that the law professors who coach these teams should exercise our fiduciary responsibility and send a clear message about the standards and obligations that should direct participation in such programs. Without our students, these competitions would not exist. We, advocacy law professors, could come together in a proclamation, committing ourselves and our schools to participation in these competitions with integrity, professionalism, and mutual respect. Not a new rule or ground for a grievance or an objection to a team but a unified voice adopting an "Advocates Creed". After all, aren't these the very attributes that attorneys are to bring with them to every courtroom?

The Virtue of Simplicity in Case Analysis and Presentation

In recent months, this blog has published several posts (available here) on the importance of continual case analysis in trial preparation. Our bloggers have agreed that case analysis is critical, that it should occur early in the process of trial preparation, and that it should be flexible--a work in progress that adapts itself to new information and evidence.

Let me add that case analysis should strive to simplify: to bring order out of chaos and present the case in its simplest possible terms to the fact-finder. Simplicity and order are difficult concepts for many law students to grasp, especially since they've spent the first two years of their law school career essentially learning how to find subtle complexities in everything they read or hear about.

For that matter, simplicity is a difficult concept for lawyers to grasp. I recently attended an Inn of Court meeting that featured a simple hypothetical on how to apply a rule of evidence to a fact scenario. After thirty minutes of lively debate, in which some participants argued both for and against the same proposition, we were no closer to resolution than we had been at the beginning. The moderator turned to a federal judge who was present and said, "Judge, what's your take on this?" His reply was a masterpiece of simplicity: "It's like I told you before the meeting. It's probably coming in. Under the Federal Rules, almost everything is admissible." (I use this only as an example of the benefits of simplification, and not as an effort to begin a debate about whether almost everything is admissible under the Rules.)

One thing I've observed about students and lawyers who overcomplicate their case analysis is the attitude that EVERY FACT in a case file must be woven together in a cohesive story that picks up every loose thread, inconsistency, or even irrelevancy. They are not able, in other words, to discriminate between valuable evidence and useless or trivial information. This tendency can lead to some remarkably complex theories that no one--least of all the presenter--truly understands. I've actually noticed the same phenomenon in some of my criminal defense clients, particularly after they have the benefit of discovery and are able to read what everyone else had to say. It's amazing how complicated their stories can become as they try to ensure that everything is accounted for and nothing is left to chance.

Life, of course, is not like that. No one is omniscient, and there are always inconsistencies and loose ends. I'm suspicious of stories that don't have them.

The best advocates learn to separate the wheat from the chaff and to find the real story behind the mountains of documents and reams of deposition transcripts. They learn to make things easy for the jury. This summer, I posted a story (available here) about my friend Hardy Menees, who agreed to take over the trial of a complex intellectual property case on the condition that his co-counsel would allow him to present it as "an old-fashioned stealing case."

When I have students who struggle with simplifying their case, I often have them role-play teaching their case to a kindergarten class. Their peers play the role of kindergarten students and chime in with questions such as, "Ms. Jones? What's comparative fault? Is that bad?", or "What's 'heinous?' My brother said that word and got in trouble."

I figure if you can't explain your case to a kindergarten student, you probably haven't boiled it down to its most simple elements.

Connecting Case Analysis and Argument: A Belated Coda

From Bob McGahey:

A Belated Coda to Connecting Case Analysis and Argument

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

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

Bob McGahey

A new way to teach motions and objections

I have been teaching an advanced criminal trial advocacy group this semester and I’ve taken a different approach with teaching objections and motions that I wanted to share with you.  I must disclose up front that I discovered how well it worked by accident, but I am sufficiently impressed by it that I intend to use it again in the future. 

Most of us have struggled with how to effectively teach objections and motions.  We have the time to teach them in trial advocacy courses, but it often becomes the thing we gloss over in favor of more fundamental skills.  While I routinely teach students the performance aspects of objecting or arguing motions I have personally found it more difficult to teach the art of effectively objecting and making motions.  It seems to have a lot to do with connecting so many different strands into a cohesive whole.

 

In this particular class one of my most important goals was to show my students the important connection between objections, motions and presenting the most persuasive case possible.  I wanted them to be able to adjust on the fly during an actual trial.  They needed to be able to shape the case through the use of the law, sometime in the actual moment when it came up.  So what to do?

I started the class by assigning a case problem.  I had all of the students analyze the case, using the techniques that I normally teach.  I am sure that many of you do the same thing. I told them to:

·         Develop timelines

o   For the overall case

o   For individual witnesses

·         Chronologies

·         Identify the law

·         Identify the facts

·         Apply the law and the facts together

·         Choose a theme

·         Think about potential motions and objections

I told them they should analyze the case twice – once as the defense and once as the prosecution and then compare them.

During our next class we talked through their case analysis.  I let the students drive the discussion, going wherever they wanted it to go.  I would occasionally ask questions, but I left the direction of what to talk about up to them.  I then had them prepare an opening statement and closing argument for both sides.  The next class they delivered those statements and I critiqued them.  I assigned each student to represent either one side or the other and told them that during the next class they were to cross examine all of the witnesses they expected to be called by opposing counsel.  It was during that class session that things got interesting.

The class period began like most cross examination exercises do, but as I began to critique the crosses the students started asking excellent questions that were tied to different branches of case analysis.  Some questions addressed fact analysis, others addressed what had to be proved, and quite few were looking into which moral theme might create the most persuasive presentation.  Suddenly our simple cross examination class was transformed into a collaborative process where the students were using the elements that we had learned during case analysis in a real world setting.

Sensing that something different was going on I let it ride, suddenly we were using cross examination to verify our case analysis.  As we continued down that path we began to identify objections to evidence and motions we needed to research and potentially file. 

I came away from class thinking that I have been teaching objections and motions in the wrong way.  I am going to look at using advocacy presentation skills to drive case analysis with the goal of further developing appropriate objections and potential motions as they relate to case analysis and persuasive presentations.  You might think of it as imbedded case analysis – we’ll see how it goes.

Charlie

Opening Statements: Finding the Essence....

Dear Friends,

I was working with a young group of lawyers this week and we were struggling with crafting persuasive opening statements. Given their level of experience these advocates are quite accomplished. I suggested that each of them prepare, on their own, an opening statement based on a criminal case that I provided. I then had them present their openings one after the other.

It was amazing to see the degree of similarity between their presentations. Each told a story in a relatively chronological fashion. They focused on both the strengths and the weaknesses of their cases and ended with the standard plea to the jury that you could hear by stepping into any local courtroom.

They were procedurally correct, cohesive and quite presentable. Unfortunately they did not sing. I literally found myself unable to remember any specifics within 10 minutes of having heard them. Why?

I think it is because they did not put a question in my mind that I would spend the rest of the trial trying to answer; the openings simply lay in the courtroom – like a day old buffet that no one has the will to put away. I was not energized to pay attention to their case in chief, in fact, I was somewhat concerned about how they might present it intelligibly - and this was from some good lawyers.

So, I have these advocates who are capable, accomplished and competent. How do I make them something more? There's the rub....

All of us who teach advocacy have struggled with the competent attorney who has done the okay thing, the safe thing - the predictable thing. What to do? There are a lot of different ways to potentially proceed, but the one I chose was to focus them on the core of the reason behind their case and how the opening statement reflected that. I wanted them to identify the essence of their case so we could see if they had told the story that would bring us to that point.

I wanted to know the core of what they were trying to prove, why it was important and how they were going to do it.

The answer to these three questions leads an advocate to the path they must take during the opening statement to capture the jury’s attention. When searching for these answers force the advocates to answer the questions succinctly.

They should be able to tell you their goal in 3 sentences or less. When they reduce it to that degree they can begin to get their arms around it conceptually. This almost invariably leads them to the hook that captures the essence of the story. Sometimes that hook arises from what happened, sometimes it comes from why it matters, and occasionally it can be found in how it is presented. But find it you must, there can be no try here - only do.

Using these three simple questions focuses the advocate, but the only way to make certain that they get it is to then have them craft and present an opening based upon the answers they have just rediscovered.

Of course before you do that you need to model the behavior for them so they see how to do it, but that is fodder for another post.

All the best,

Charlie

A Guide to Using Case Map Software in a Teaching Environment

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


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

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

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

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

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

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

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

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

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

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

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

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


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

Case Analysis and Case Map Software--Request for Information

I'm sitting in the lobby of a hotel in San Francisco, where I am attending the AALS Annual Meeting. It's been a good meeting so far; I've attended some thought-provoking panel discussions. More importantly, I've been able to spend time with valued friends and colleagues, talking about things that matter.

By the way, the Golden Gate University Advocacy and Skills Reception, hosted by Wes Porter and Bernie Segal, was a tremendous success. For those of you who supported Wes and Bernie by attending it, allow me to thank you on their behalf.

I also spent some time wandering through the exhibit hall at the meeting. I was intrigued by the Lexis case map software. I've personally never used it, but I did read about it in David Thomson's book Law School 2.0: Legal Education for a Digital Age.

It seems to me that the software might be quite useful for helping students conduct case analysis in a trial advocacy class or in preparation for a mock trial. The software keeps track of information, organizes it by issue, and links it to other related exhibits and information. I think that some of our Millenial students, who love anything digital, could benefit from the software.

I plan to learn how to use the software when I get back home to Carbondale.

In the meantime, I'm curious to know whether anyone else has used this software (or anything similar to it, if such software is available) to help teach case analysis and assist students in conducting case analysis. If you've had experiences with it, please share them in the comment section of this blog.

Basically, what I'm trying to decide is whether the time investment to learn the software (and teach its use to students) is worth it. I personally consider case analysis to be one of the most important things I teach in an advocacy class. I'm all for improving the process, but if the software is not really amenable to the task, I'd like to know about it.

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.