Should Trigger Warnings be Required When Teaching Trial Advocacy?

Should Trigger Warnings be Required When Teaching Trial Advocacy?

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

Mark's question:

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

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

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

“I got to get on the good foot…..” or Suggestions for Your Initial Class Session

Judge Bob McGahey guest blogs for us from time to time. He converted his presentation from EATS 2013 to a blog. For those others of you who presented, this is how it's done!

“I got to get on the good foot…..”

OR 

Suggestions for a Your Initial Class Session

By

Hon. Robert L. McGahey, Jr.

At the recent EATS Conference, I was assigned, along with Gillian Moore and Jude Borque, the topic of “Teaching in the Moment: Developing Your Critiquing Methodology.”  We were the last presentation of the second day – and I also ended up going after both Gillian and Jude.  No pressure, right?

Gillian and Jude were their usual brilliant selves, and I ended up using some of what they both said as a jumping off point.  I found myself talking about the kinds of things I do one the first night of class. In this post, I’ll try to summarize some of what I discussed. (And since I’m a child of the ‘60’s, who better to steal a title from than James Brown?)

Here’s the picture: it’s the first night of Basic Trial Practice. You look out at twelve eager faces. Well, some are eager.  Perhaps more are scared or trying hard not to look scared. Just as with a jury at the start of voir dire, you have to connect with them right away.  How? Well, like voir dire, you should think this out beforehand, and prepare.

An Early Exercise in Trial Ad: Advocacy Personality Presentations

Another blog post from Wes Porter of Golden Gate University.

 

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

 

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

 

What are "Advocacy Personality Presentations"?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Wes Porter

 wporter@ggu.edu

o

Jack and Jill, the true story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: That beanstalk was getting bigger?

A:　 Yes

Q:　 Needed more water?

A:　 Yes

Q: So more trips up the hill?

A:　 Yes

Q: Done by Jack?

A:　 Yes

Q: Usually alone?

A: Yes

Q: And he’d return safely?

A:　 Yes

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

A:　 No

Q:　 Always came back with his crown?

A:　 Yes

Q:　 The magical crown?

A:　 Yes

Q: Went up with you that day?

A:　 Yes

Q:　 No one else there?

A:　 No

Q:　 He fell down?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 The crown came off?

A:　 Yes

Q:　 Right before your eyes?

A:　 Yes

Q:　 He got to the bottom without his crown?

A:　 Yes

Q:　 It disappeared?

A:　 Yes

Q:　 You tumbled?

A:　 Yes

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

A:　 No

Q:　 Just you and him on the hill?

A:　 Yes

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

A:　 Yes

Q: But you fall after him?

A:　 Yes

Q:　 In his tracks?

A:　 Yes

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

A:　 Yes

Q:　 New isn’t it?

A:　 Yes

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

A:　 Ugh?


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

Hugh Selby (c) December 2011

A student view of appearing before a Court of Criminal Appeals

The Criminal Appeals Clinic at the University of Mississippi provides third-year law students with an opportunity to appeal a “real live” client’s criminal case through the writing of an appellate brief, and to present live oral arguments before the Mississippi Court of Appeals. (See earlier 2011 article on this blog by Phil Broadhead who is the Clinic’s Director) This is a view of the clinic from a student’s perspective, one who relished the chance to help a prisoner who was, it seemed, denied a fair trial.

Buddy approach

Stepping into the clinic class on the first day we may think we know what we are getting into, but we had no idea.　We were all assigned a case partner and handed a case file.　Each of us wondered if our case partner will be someone with whom we will be able to get along for an entire semester, and then we asked, ‘Am I ready to have someone’s life resting on my untested legal ability to advocate for them?’

A day or two later we printed out all of the documents and found we needed a five-inch binder to hold all the papers that we must check with a fine-tooth comb, because missing one little piece of information may be the difference between a successful appeal and our client spending the remainder of his life in prison.　Finally we were grateful that each of us was not solely responsible for writing an appellate brief on behalf of our client, as we recalled the horror of our first year legal writing efforts and the appellate brief we wrote at that time.

Issues and Writing

The class is structured to ensure that we had every tool to digest the myriad of documents associated with the case.　After going through the case documents several times, condensing them into a narrative, identifying the best issues for appeal, and doing the necessary legal research, the brief-writing process began.　The process was broken down into small, manageable sections that made the process seem effortless.　By the time our brief was completed, my case partner and I looked back and wondered how we had completed an entire brief without once being stressed.　

Each section of the brief was assigned and written individually and was coupled with classroom instruction. Once a section was completed, it was edited by Professor Broadhead, and returned to us for revision. We then had plenty of time in which we compiled the brief sections as a team for a “mega-edit.” We put it together into one document and added the table of contents, table of cases, and record excerpts for filing with the Court.

Oral argument preparation

The next step in the course was to prepare the live oral arguments to be made before a panel of judges on the Mississippi Court of Appeals.　Because the case we had been working on had not yet been answered by the State, we received a whole new set of documents and a brand new five-inch binder from a case prepared by the clinic students in the prior semester.　The most difficult part of preparing for oral arguments was being bound by a brief that someone else wrote.　At this point, we had all of the necessary skills to get through the case documents and identify all of the pertinent information in a fairly timely fashion, but if something we thought was important wasn’t included in the brief it was very frustrating to know that we had to put it out of our minds.　

Having reviewed both the documents and the applicable case law, we had two weeks of intensive oral argument preparation.　The two-person oral argument team and Professor Broadhead met three to four days per week for two to three hours at each meeting, in addition to a great deal of individual preparation.　Once again, there was that, “what have I gotten myself into” moment at the first meeting.　And, once again, we were given all of the tools and knowledge we needed to prepare an effective oral argument outline.

The first assignment was to compose our opening or closing statement, depending on whether one was doing the initial argument or the rebuttal.　Once the opening and closing statements incorporated the theory of reversal and the accompanying themes, we began to prepare the outline for the substantive argument, along with a case sheet of the controlling law in the issues to be argued.

By the end of the two-week preparation, we had a solid idea of the content of the issues, along with the elements of style in their delivery.　The preparation culminated with a dress rehearsal oral argument session presided over by other professors from the law school and a member of the moot court team.　This was when everyone realized there was no way to get through everything in the available time.

On our feet

The day of arguments was exciting and nerve-racking. I felt, wrongly, that I was wholly unprepared to be arguing against an assistant state attorney general.　Being in the room where the arguments take place was fine until the judges came on the bench, then all of the nerves hit and I began to pray that I wouldn’t screw up.　But, during the opening statement, I realized that I knew this case inside and out and was more than prepared to assert the arguments effectively on our client’s behalf.　Once a judge asked the first question, a fairly decent, maybe even a great answer flowed from brain to speech, the nerves dissipated and I was in a groove.　The eighteen minutes passed like eighteen seconds, and I sat down feeling pretty darned good.

Recommendation

The Criminal Appeals Clinic experience, or something comparable, is an experience that I would recommend to every law student. The skills or confidence this hands-on work gave me could not be gained in a traditional law school class.　My participation in the clinic was the most valuable and rewarding experience I had at law school.　It has given me confidence in my abilities to go into a courtroom and become an effective advocate, and has provided me with skills that will aid me throughout my future career.


This article was contributed by Katie O’Connell who was a clinic student in 2010 and recently began her career at the public defender’s office in Florida.

Teachers of Advocacy: Asking those in your Community

This post is tangentially related to advocacy, insofar as sentence advocacy is a part of the criminal justice system in federal court. In my neck of the woods, we not only have the occasional corrupt governor, but we also have lesser public officials who regularly succumb to temptation and use their public offices as a means to help them commit crimes.

One such official is former Gallatin County Sheriff Raymond Martin, who just received two consecutive life sentences for marijuana distribution and plotting to kill witnesses. The sentencing judge was the Honorable Phil Gilbert of the Southern District of Illinois in Benton, Illinois. The Washington Post has a great article describing the sentencing hearing and quoting Judge Gilbert's rather straightforward condemnation of the former sheriff. The article is available here.

Now--the advocacy connections.

First and foremost, if you share this with students, let them know that Raymond Martin is a classic example of how NOT to present one's self at a sentencing hearing. Witness preparation is important, and in a criminal case, getting a client to appear in the best light at a sentencing hearing after a contested case is no easy task.

Second, I enjoyed this article very much because I know the people in it, and it's nice to see them get some positive recognition on a national stage. Judge Gilbert regularly (and with supreme patience) serves as a trial judge for our basic and advanced trial advocacy courses at Southern Illinois University. Three of our trial advocacy adjunct professors are Assistant U.S. Attorneys in the Benton branch office, and I know at least one of them was deeply involved in trying the Martin case. Without their service, my trial advocacy courses would lack life, vitality and reality.

The point is this: if you are a law professor teaching a trial advocacy course, reach out to the legal talent in your community. Their viewpoints and experience are priceless, and one thing I've learned over the years is that most people who try cases are natural teachers who want to help neophyte advocates get better. It's a wonderful experience for a student advocate to learn from the very best your area has to offer, and even in a remote place like Carbondale, Illinois, we have some exceptional resources available to us.

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

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

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

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

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

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

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

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

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

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

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

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

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

Hugh Selby © January 2011.

Our Students as Teachers and Critics

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

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

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

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

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

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

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

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

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

Cross examination - ask the question.

We often teach students to avoid filler words and useless phrases. From the Blago Blog, here's a real-world example of a trial judge taking Blagojevich's attorney to task for doing just that:

"Zagel has called a 15-minute break. Before he did, he called Adam over for a conference. The judge urged Adam to avoid starting his questions with "you said" -- a wording that "generally speaking, doesn't get you anywhere."

It's a phrasing that Adam has taken a particular liking to, it seems.

"I say this because it probably could reduce the length of the cross-examination by 10 percent," Zagel told the attorney."

Doesn't get you anywhere. Wastes time. Two good reasons to avoid filler words on cross-examination.

In addition to that, the blog has quite a bit of fascinating information about the trial and specifically, the defense cross-examination of a government witness.

Today's trial as a learning and teaching tool -Blagojevich Trial 2010

Opening statements in the Rod Blagojevich corruption trial take place tomorrow. Blagovejich is the flamboyant former governor of Illinois, accused of trying to sell Barack Obama's Senate seat. For the uninitiated, the trial will provide a fascinating look at the seedy underbelly of Illinois government, where politics is a blood sport and influence peddling has been elevated to art form.

Beyond that, the trial should be a useful vehicle for teaching trial advocacy. Because of the high-profile nature of the case, it is likely to receive heavy press coverage, including learned commentary from the punditocracy about the advocacy choices of the attorneys for both sides.

Check out this article from the Chicago breaking news service for a preview of the different styles likely to be on display during opening statements tomorrow.

A quote that stood out to me in the article was from Blagojevich's attorney, Sam Adam, Jr.: "The more you try to say things the way you think people want to hear them, the more you get away from what got you there in the first place." One of the hardest things to teach budding young attorneys is to rely on their own voices, and I don't think I've ever seen the point better phrased by anyone else.

I am convinced that integrating discussion about current cases can be a valuable part of teaching either a trial advocacy or an evidence course. Students thrive on making connections between what they are seeing in the courtroom (or reading about, or watching on television), and what is being taught in the classroom. Personal experience as a student, then a teacher, has taught me how important this connection can be.

I took a criminal trial practice class my third year of law school during the O.J. Simpson trial. Our class was taught by two seasoned criminal defense attorneys, who took full advantage of the teaching opportunity posed by the trial. We spent the first ten or fifteen minutes of each class discussing the case. The insights they provided about strategy, tactics, and decisions of counsel were invaluable, and helped me catch a glimpse of just how complex and difficult trial work can be. Until I took that class, I thought the world of appellate cases and advocacy represented the pinnacle of the lawyer's art; after the class was over, I felt differently, and I made my career choices accordingly.

So-I'll be paying close attention to the Blagojevich case. As an Illinois resident, I'm interested to know whether Blagojevich will join George Ryan in the Illinnois Governors' Wing of the Terre Haute Federal Correctional Institute. As a student of the human condition, I'm looking forward to witnessing a drama of potentially Shakespearean dimensions (after all, we have on trial a man with few inhibitions, who has promised to testify in his own defense, and who would not hesitate to drag the President of the United States down with him). And as a teacher of trial advocacy, I plan to be alert to opportunities to enhance my classroom instruction with a dose of real life.