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

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.

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.

The Case for Continual Case Analysis

No Plan Survives First Contact with the Enemy
--U.S. Military Planning Axiom

Wes Porter recently posted an article about case analysis that I found quite insightful. I'm glad I got it in time to use it with my trial team. I emphasized case analysis to a greater extent this year, requiring more from the students at the beginning than I have in the past. I agree with Wes that it's important to establish a "reputation"--or, in other words, a set of expectations--for the program. I actually had a student quit this year's team after learning how much work it would be.

In his comment to Wes's post, Adam Shlahet identified another important consideration. We can't plan forever, because at some point, we have to start prepping for the competition. Instead, we have to teach our students to accept the fact that they will be refining their case analysis right up to the last round of the competition. They must be able to develop the flexibility and skills to be able to do this.

A technique that I use with my students is to assign a formal case analysis memorandum, followed by the preparation of a complete written trial outline and script. I give them a couple of weeks to get all of this in order. Then, right after the deadline, we try the case all the way through, from preliminary matters to closing arguments. I record the trial so they can see their progress throughout the semester.

What I've found is that the students are amazed by how much work they still have to do. Cherished ideas or theories don't often survive the first adversarial clash with another set of students. This first trial is much better than any lecture I could deliver, and I prefer it to my taking a more directive role in their case analysis. The lessons they learn themselves seem to stick better than what I try to deliver in lectures and critiques.

In Army command post exercises, we frequently discussed the maxim, "No plan survives first contact with the enemy." To avoid disaster when contact occurs, commanders develop contingency plans in advance, but they also employ a continuous planning process.

I think it's important for advocates to learn the flexibility required to respond to contingencies, both planned and unplanned. If their trial preparation process consists of nothing more than memorizing a script, they won't learn what they need to learn. But if case analysis and planning is viewed as a process, rather than a single step or event, they will be better prepared to succeed at trial.

Initial Case Analysis for Trial Teams

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

The fall mock trial season is upon us.

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

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

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

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

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

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

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

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

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

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