Be a Good Advocate. Stop Talking and Listen

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hugh Selby ©
July 2012.

In Praise of Simple, Direct, Factual Questions

While browsing through the blogosphere this morning, I encountered a post in praise of Brian Lamb's questioning style on the C-SPAN Booknotes program. Brian Lamb was a founder of C-SPAN and an interviewer of some renown.

I thought I'd share a link to the post (available here). It offers some valuable insights on asking questions, noting that Lamb was very good at drawing information from people by asking direct questions about simple facts.

In the comments to the blog post, someone provided a link to an actual interview done by Lamb (available here) in which his interviewing qualities are on display. As an advocacy instructor, I often emphasize to students that in a well-constructed direct examination, the witness takes center stage and the advocate merges into the background. I was impressed by Brian Lamb's ability to do this in the interview. In the first few minutes of this interview, there's a great story about the time Norman Mailer stabbed his wife nearly to death at a party. That alone is worth a listen!

So--enjoy the blog post and the interview. It's hard to find examples of good questioning techniques on television or in movies.

Introducing Good Advocacy - the mental and performance skills

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hugh Selby © 2012

Listening: Impossible to Teach?

This post is from Judge Christina Habas of Denver, Colorado.

                Thinking back to a time when I failed to understand the importance of listening, it never occurred to me that this would be a problem.  After all, I understand English, I am not stupid, how hard could it be?  Then I asked my first important question in a deposition and heard absolutely NOTHING.  When I read the transcript sometime later, it was amazing how many follow-up questions I could have asked, if I had just listened.

                Some people claim that you cannot teach a person to listen – either they know how to do it, or they do not.  I respectfully disagree.  There are probably many ways to teach this, but here are just a few that I have found helpful:

1.                   Do a drill which requires the student to wait for a period of 5 seconds after an answer, and before they ask their next question.  Do not let them write notes, do not let them look at their notes during this time.  They must look squarely at the person to whom they are speaking, and actually LISTEN.  Five second seems interminable to the person asking the question, but to us, it is nearly nothing.  GET THIS ON VIDEO, if possible.  This drill should not be overdone, however.  Once the student does this for 5 or 6 answers, it should suffice.  Choose a time during the examination when listening is important (i.e. not the qualification stage).

 

2.                   Require to student to do a “loop back” in every question of their examination, looping back to the immediately preceding question.  This will force the student to not only listen, but to use the information that they hear, and to THINK before asking their next question.  Again, do not overuse this, and use this drill during an important phase of the questioning.

 

3.                   Do a drill using the entire room, requiring each successive student to ask a follow-up question to the answer just given.  Let them take the time to formulate the question before asking it.  Make certain that the question actually follows up on the ANSWER, and does not just represent a normal follow-up to the prior question.  Faculty should play the witness so that there is information loaded into the answer that requires follow-up.

 

4.                   Do a direct examination drill which is not tied to a case file, but to an actual occurrence.  Anyone can play the witness, and the subject matter is irrelevant.  No notes may be taken, and at the end of the questioning (perhaps 5 minutes) the student must tell the story that they heard from the witness.

 

There must be many more ways to teach listening.  Each time I preside over a trial, I wonder why we are so reluctant to actually listen, and I realize that this is because it is so difficult to give information, and to receive it at the same time.  Giving yourself the luxury to think and “soak in” all of the information given in an answer takes practice and patience.  This is absolutely teachable.

 

 

Teaching Advocates to Listen

I'm always intrigued by the transformation that occurs when advocacy students conduct their first witness examinations. Until the moment they ask the witness to "state your name for the record," they are confident, competent conversationalists, capable of listening to others and asking natural follow-up questions. But in the courtroom, their life-long training as human beings abandons them. They adopt a stilted, awkward interrogational style in which getting through a prescribed list of questions takes priority over all else.

I recently discovered—by accident—an exercise that seems to have some promise in helping advocates develop the ability to listen to witness responses, ask natural follow-up questions, and use logical transitions from subject to another. I've tried it once, with some success, and I hope to develop and refine it further throughout the semester as I work with my trial team students.

Last year, I wrote about an advocacy exercise I developed a few years ago called "Deconstructing Studs," available here, in which I give the students a chapter from a Studs Terkel book and have them create a direct examination from it. I've experienced good success with this exercise as students strive to develop examinations that flow as smoothly and effortlessly as one of Terkel's oral history chapters.

A week ago, I assigned my trial team a Deconstructing Studs exercise. I modified the assignment a bit by insisting that their notes could consist of nothing more than an outline of headlines and bullet points for the subjects they intended to cover. I also changed things up by having about half of the students use their outlines to conduct a direct examination, and the other half using their outlines to conduct an examination by leading questions. The students did not find out which type of examination they would be doing until it was their turn. I played the witness roles and followed my usual practice of answering the questions the advocates actually asked, even if I was sure they meant something different.

I noticed that the students were having difficulty listening to answers and responding to them in a natural fashion. I believe their difficulty arose because they weren't operating from a script, and many of them were looking at their next bullet point and trying to formulate a question rather than listening to answers. This applied whether the examination used leading or non-leading questions.

Through the process of trial and error, I finally managed to get them to listen and respond better. I had three of them stand up at the same time to conduct the investigation. The rules were that each person could ask only one question. Each question had to logically follow from the previous question and answer. If a subject was exhausted, the questioner had to use a headline to move to the next topic. I had tried this sort of thing in "getting to know you" drills, but never for a prepared examination.

For some reason, the three-headed examination actually worked. My examiners were not tied to their notes, because they had no idea what the person immediately preceding them would ask, or for that matter, what I would answer. This ended up being the best examination of our practice session.

I intend to experiment with this some more during the fall trial team practice season, and if I discover anything noteworthy or revolutionary, I'll write about it.

 

 

 

A Short Introduction to Direct – a student guide.

What we and our witness are trying to do on direct.

1. Recreate with words and visual aids a little bit of history. We want to take our audiences into that history as though they were there, on our side;

2. Hence we want to emphasise (bring to the forefront) those aspects of the story that are important to us; and,

3. We want to downplay/minimise those aspects of the story that are vulnerable to attack by our opponent such as: limited opportunity to see/hear; character defects; and, outside common experience.


Who are our audiences?

1. the decision maker for whom we need to make both the story and the witness attractive;

2. our witness who needs both to trust us, and believe that working together we can do it better than the witness could do it alone;

3. our opponent who is looking for ways to successfully cross our witness (because of what our witness says or omits to say); and,

4. other lawyers, students etc. who want to know if we’re any good.


Techniques that we use.

1. We get ourselves ready to perform by following a routine that turns our anxiety into a positive. So we have a rehearsed stance, we have used our ‘anxiety control techniques, our notes - that list just the topics and any cross references -are where we want them so we can mark off our progress, and we have carefully taken in the ambience of our performance space;

2. Because we know the story we divide it into chapters/segments/episodes and use those as stated topics, so as to keep the audiences – all of them – up to date and following the route that we have planned;

3. To have others visualise the scene we must go into the scene with our witness and be able to see, hear and feel it. Hence as we ask questions we do so from a place within the story. We may be standing at a bar table but our mind, our imagination, and our intelligence are operating in another place;

4. We generally use open questions that include ‘how, why, when, where, what, and who’ because these allow the witness to explain. Each question is at least partly fuelled by the previous answer. What’s more our questions:-

Are always short;
Rarely use noun and verb describers;
Raise one point;
Actively respond to the unexpected; and,
Let the witness establish the story incrementally, like pieces in a detailed jigsaw puzzle.

5. We use closed questions on matters that are not in dispute when it’s efficient and effective to do so. So, for example, as defence lawyers we do not have our client repeat all the material led by the prosecutor/plaintiff with which we agree. Instead we say, “This [describe] is agreed, isn’t it?”. However, we don’t use closed questions on our expert’s qualifications and experience because it might be efficient – and our opponent may be happy to concede our expert’s expertness - but it’s not effective to quickly pass over our expert’s expertness in front of a jury;

6. We follow the guideline of start and finish strong, with the weak stuff buried in the middle:-

We have a timeline – a neutral, but comprehensive demonstrative aid - to share with everyone. It follows that we are not bound to elicit the story in the same time driven sequence in which the witness’s statement was written;
Something strong means something that the witness can be strong about (ie. the witness will perform well. It’s a loser’s approach to start with a strong content point that the witness ruins because the witness is unsure. Remember that the messenger leads the evaluation of the message); and,
Where the witness presents well then we have them talk to the decision maker and we downplay our own presence, eg. by looking down/away and keeping our voice volume below that of the witness. [cf, if the witness lacks ‘presentation goodness’ then they face us and we attract the decision maker’s attention to us.]

7. We use visuals as early as possible – and have copies for everyone- because they take people where we want them to go and they provide a common basis for understanding:-

We make sure there is a simple base line and that everyone in the audiences is on that base line;
We either have distances marked within the visual or we share present sensory experience in the court room to show equivalent distances;
We use the clock face on the court wall to show directions; and,
We talk about interference, be that lighting, noise, fixed obstacles, moving obstacles, lack of time, and do our best to minimise its negative impact.

8. We respect our audiences by: -

Speaking slowly and clearly;
We let our witness know that we are listening by using part of their answer in our following question/s and giving them occasional eye contact (with more eye contact for the more vulnerable witness);
We are silent after an answer, so that the decision maker can absorb the answer, consider its implications, and make any notes. We can sip water;
We sit when our opponent makes an objection and we think before we respond to that objection; and,
We are responsive to emotional demands, such as crying by the witness or shock by the decision maker. We don’t pretend it didn’t happen.

Hugh Selby © May, 2011.

The Value of Open-Ended Questions: A Drill

The following blog entry and drill is courtesy of Jack Nevin. Jack is a trial judge in Pierce County, Washington; an adjunct professor of trial advocacy and military law at Seattle University School of Law; and a retired Brigadier General in the United States Army Judge Advocate General's Corps.

Who Am I? An Advocacy Drill

Using only open-ended questions, students must examine the instructor, who plays the role of a witness, to determine who the witness is and what happened. The scenario we present is a child who witnesses a possible crime at their school.

Setting Up the Drill

First we characterize direct examination as the most important part of the advocate's case.

Next, we focus on the importance of open ended questions which allows the witness to tell their story.

Running the Drill

The students are told literally nothing, and are required through the use of open ended questions, to determine who the witness is and to identify their situation. The teacher should have a story in mind, so they are not inconsistent in their responses to the students. The students are limited to questions beginning with who, what, where, when, how, describe, list, "tell me about", or any other open ended word. Since the teacher conducting the drill is an adult, the students don't usually pick up the age (10) until later in their questioning. If they stay with open ended questions they can usually identify the name, age, and location (school hall) early on. By staying with the open ended questions, they can learn what happened to whom, and what the sequence of events was.


Aftermath and Follow-Up
Thereafter we ask the students to tell the professor what happened. If successful they can identify the child by name, state his age, and what happened at the school that day.

This exercise shows the students that they can learn literally everything they need to know by open ended questions. It also shows the importance of open ended questions and of course gives them the necessary practice.

Using Movie Clips to Improve Direct Examination

I'd like to follow up on Hugh Selby's excellent post on bringing a 3-D element to direct examination.

The artificial conventions of direct examination can serve as a barrier to prevent advocates from bringing a story to life through a witness. Constrained by the form of questions, hamstrung by the perceived need to "get facts in" through a witness and frightened by the possibility of drawing objections from opposing counsel, many advocates fail to develop the narrative richness and color that their witnesses might be able to provide them. After all, the witnesses generally have a tremendous advantage over everyone else in the courtroom--they've been there and experienced the events about which they are testifying first-hand. Instead of telling stories through witnesses and bringing the fact-finder to the scene, we often use witnesses simply to recite boring lists of events and facts.

This phenomenon is, of course, not limited to trial advocacy. Many years ago, I became friends with Leonard Bishop, a novelist and teacher who lived in Manhattan, Kansas. Leonard used to put on a creative writing workshop at local elementary schools. He always got a laugh from the students with this line: "All your characters are naked! You haven't put any clothing on them!" Then he'd have them rewrite their stories, adding description and color to the plot line.

It's difficult to get student advocates to bring elements of color and description into their direct examinations. I believe this is because case files are two-dimensional. Student witnesses are limited to what is on the printed page, and because they haven't actually seen or experienced what their "character" has, they have a difficult time bringing their witnesses to life.

To help solve this problem, I use movie clips. I try to make the exercise as realistic as possible by ensuring that only the witness is able to view the clip. The advocate has to interview the witness in order to obtain the necessary information for the examination. Often, I'll set the exercise up so that the advocate has to interview multiple witnesses, decide on the most effective witness order, and then present the story through the witnesses to a jury. At the end of the presentations, everyone--counsel, witnesses and jurors--watch the clip together, and we talk about whether the advocate succeeded in bringing the jury to the scene and making everything come alive.

I often select a clip from the TV mini-series Lonesome Dove, primarily because it is set in the 19th-Century Old West. The time, place and setting require the advocate to pay attention to detail. I provide a brief fact sheet for each witness (giving them the year, the name of the town, their name, and some biographical information they would be expected to know). I have also used scenes from other movies for this exercise. It isn't the movie itself that's important; it's the opportunity for a student witness to come as close as possible to experiencing an event in the way an actual witness would.

As a variation on this exercise, I sometimes assign several advocates to interview separate witnesses. They must share this information with a "senior partner," who then decides how to present the information and must also give an opening statement based on the information collected from the advocates. We did this as a demonstration at the NITA Public Service Attorney course a couple of years ago. Student advocates conducted the interviews, and the inimitable Bill Ossmann served as the senior partner and gave the opening statement.

Here are a few rules for the exercise:

1. Don't worry about the cause of action. The purpose is to tell a story, not fill in elements of a crime or tort.

2. Only the witnesses watch the film clip, and they only get to see it once before their interview with counsel.

3. Each witness gets a fact sheet in advance.

4. Counsel are instructed to pay attention to detail and setting in their witness interviews.

5. After the presentation of the story, everyone watches the clip together.

6. We discuss what went well and what could have been improved.

Deconstructing Studs: A Direct Examination Exercise

One of my favorite authors is the now-deceased historian Studs Terkel. He was famous for his oral histories, including such classics as The Good War, Hard Times, Will the Circle Be Unbroken: Reflections on Death, Rebirth, and Hunger for a Faith and, just before his death, P.S.: Further Thoughts from a Lifetime of Listening. The title of his last book gives an important clue to what made him so good as a historian: he learned to listen, and he learned to find the compelling stories told by ordinary people in extraordinary times.

If you've never read a Studs Terkel book, you should, especially if you teach advocacy. The books are divided into chapters, each of which tells the story of a particular event from one person's perspective or memory. There is a brief biographical statement, such as "Mayor Tom Bradley. He is mayor of Los Angeles. He was a young policeman in 1941: 'I had been on the job for about a year.'" Then the story, told in the voice of the interviewee: "Immediately after Pearl Harbor, there was bedlam. Sirens going off, aircraft guns firing. It was panic. Here we are in the middle of the night, there was no enemy in sight, but somebody thought they saw the enemy. (Laughs.) They were shooting at random."

The first-person accounts in his books flow effortlessly. Occasionally, one notices the presence of the interviewer with a transition, or a question, but in general, the only voice one hears is that of the interviewee.

In his books, Terkel achieved the type of storytelling that most direct examiners can only dream of.

But putting this together wasn't as effortless as the final product made it appear. Terkel would take a tape recorder and spend literally hours interviewing people, then edit the interviews into their final format. A tremendous amount of work.

After reading one of his books a few years ago, I created a direct examination exercise for my advanced advocacy class. I call it "Deconstructing Studs," and it's pretty simple. I assign the students a short chapter from one of Terkel's books. They have to prepare a direct examination of the character in the chapter--a real, live person, whose compelling story has been edited into that form by Terkel--and then conduct that examination in class. The questions have to be open-ended, single fact questions. They cannot ask narrative questions. The focus must be on the witness, not the examiner. Their goal is to strive for the same effortless flow in their direct examination that Terkel achieved in his chapter.

It's an incredibly difficult, but rewarding, exercise. I recommend that you try it. And at the very least, even if you don't try the exercise, read one of Terkel's books. You can't help but admire the craft in his interviewing and storytelling techniques.

Direct Examination – Changing the Story from Plainly Dull to Participant 3D.

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Whether from the public gallery, or the bench, or just watching our students ‘have a go’ there is a depressing ambience whenever the advocate is a slave to their witness statement: their eyes and then their brain and then their voice pushing out widget words lifted from the page and thrown against the witness for a response. It gets worse: oh so typically the advocate does not engage with the response but is again and again taking the same path to throw out the next question.

Too many advocates wrongly believe that they have mastered ‘direct’ when they can: use open questions (who, what, when, where, why and how); occasionally insert some of the last answer into the next question; state their topic and have a smooth transfer to the next topic; and, avoid having sustained objections from their opponent. Typically these advocates stand tall, face their witness for sustained eye contact, and maintain a dominating voice.

One should never assume that a ‘grand look’ guarantees the right result. These days it is often easier, quicker and cheaper to demolish an imposing old courthouse and build a new one, rather than trying to renovate something that is solid, but was not well designed and is inadequate for today’s needs. But even the worst building has its admirers who will fight for its retention. Advocacy teaching has its parallel: teaching the young and open can be easier and more rewarding than battering at ingrained years of bad, but trusted technique.

Let’s take a very straightforward example: where to look and who to dominate. Is that ‘standing tall’, eye to witness advocate getting something right? Old advocates think the focus should be on them. That’s what they were taught or told. That’s what they have been doing and will do until the door closes behind them after their last trial. Others will say that the witness should face the decision maker and be the focus of attention. Then there’s the occasional judge who interrupts direct to tell the witness to stop looking at the jurors and look at the questioner. Why? Because that’s the polite thing to do and (so the judge thinks) much more important than paying attention to those who must listen to the message and assess both message and messenger.

So, what’s the right way? We start, as persuaders always should, with the decision maker’s objective needs and subjective wants. We note that the success of a direct is the result of the team effort of witness and advocate. Both message and messenger are evaluated by the decision maker. So, when the witness looks and sounds OK then the technique is to boost attention to the witness and downplay the advocate. This is done by having the witness share the information with the decision maker and by the advocate reducing their physical presence so that he or she does not distract the audience. The reduction is achieved by keeping one’s voice level below that of the witness and avoiding eye contact with the decision maker. Conversely, when the witness repels (because of reputation, prejudice, or both), it makes sense to draw the decision maker’s attention to the advocate and keep that attention away from the witness. In this situation the advocate looks toward the decision maker.

Does that leave any situation when the witness and their advocate should be looking at each other (and thus away from the decision maker)? Yes. A fragile, vulnerable witness needs the reassurance that comes from eye contact with their advocate. The downside to that act of kindness is that the fragile witness, like every other witness, must then face cross examination from the opponent. The witness who eyeballs an experienced, competent cross examiner has a death wish. Given that many cross-examiners derive their ‘energy’ from eye contact with the target it seems almost tragic to reassure the witness through eye contact during direct so that they are more easily controlled during cross. This is the court room parallel to healing the sick convict so that he goes to the gallows healthy.

Taking notice of likely cross examination and making one’s witness as small a target as possible is another requirement for direct that is too often ignored. Before trial the essential case analysis calls for identification of the strong and weak points in the case, coupled with devising an approach that gives the witness the best chance to resist a cross examination assault that is mounted on one or more of those weak points. That ‘best chance’ usually combines a few steps. The first is raising the weakness during the direct but after the witness is well settled and has created some favourable rapport with the decision maker. The second element is to confess to the weakness. This can be done by a combination of advocate statement and witness endorsement. For example, ‘Let’s now turn to discuss something that you wish had never happened. Please tell the jury what it was that still shames you about that time’. Witness bares soul to jury. The third step is connecting that answer directly to the point in the case where the opponent was certain to use it, ‘ Now, concerning the issue of X, what do you say about the effect of the matter you have just shared with the jury’.

The opponent will still go there. The urge to attempt humiliation seems to linger even after the target has bared their imperfections. There is no longer the chance of a long drop exposure. What’s left is nothing much more than kicking a poor horse when it’s down. With luck the opponent’s overt irritation at having been deprived of a stunning point will induce in the decision maker some resentment towards the opponent and some sympathy for your witness.

Such sympathy is an aspect of your witness’s credibility. In common parlance ‘credibility’ means ‘able to be believed’. But within a trial a witness’s credibility has a broader meaning: it encompasses the whole gamut of reactions that each decision maker has to the witness, some on the positive side and some on the other side. It touches on reputation, trustworthiness, reliability, believability, sincerity, on that attractiveness which goes beyond physical attributes and finds a person, in spite of their faults and limitations, to be likeable enough to be accepted.

Direct examination, as a team telling of a story, requires attention both to the message content and to acceptability of the witness messenger. It’s common enough to devote the early questions in a direct to getting out the background of the witness. This is often a checklist recitation of the usual boring stuff which, as always, is justified on the basis that it was taught, or suggested, early in an advocacy career and has just become a habit. With a little more thought it is justified as helping to settle the witness because they are unlikely to give wrong answers. But that thinking is still inadequate. First impressions matter – some say they are critical. Background information must attract the decision making audience. It must give them a reason to have an interest in the witness and her or his story. As the story unfolds so must the witness’s relationship with the audience develop so that the credibility, the acceptability, is enhanced.

The advocate, as the witness’s team partner, can contribute by keeping a low profile, waiting silently for the audience to consider the witness’s last answer before asking the next question, using their questioning voice to forecast the interest and importance of the next answer, and moving from one topic to another with a storyteller’s skill.

Before James Cameron changed the face of cinema with his 3D Avatar I found it useful to explain the ultimate goals of direct to students and clients by reference to some aspects of traditional Japanese Bunraku puppetry. The main puppeteer is visible to the audience - often colourfully dressed, while the other operators are dressed in black and are visibly invisible. Bunraku is story telling on eternal themes, using voice, action and the passage of time. It is 3D. It requires team work and done well, draws the audience into the play. Unfortunately it is no longer popular so Cameron came along just in time. Cameron takes the audience right into the action, so much so that only our sense of smell is ignored. To be on Pandora with Jake in avatar form as he rides first the flying, soaring smaller banshee and then the giant banshee ‘toruk’ as it dives and climbs in the mountain air spaces is to be a part of his journey.

To have Jake capture a court room audience with that story - without Cameron’s film - would require the advocate to be with Jake, seeing what he saw, understanding the excitement and the emotions, and asking questions that allowed both the events and the mood to be expressed. Critically this means that for Jake to tell his story in a courtroom he and his advocate need to be in two places at once. While both are physically present in the courtroom, and in separate places in that room, they are also in far away Pandora, sitting together on the back on the banshee. Thus the story telling requires the advocate’s immersion in Jake’s story because by that means the advocate’s questions will draw out for the decision maker those aspects of Jake’s account which are relevant to the hearing.

The widget word advocate has no sense of that adventure, no sense in fact of anything outside of the witness statement in their hands. Such an advocate is confined to a 2D view of the here and now. Skill progression requires that he or she learn to prioritise the information before them and to lead the information with an ear to making it interesting to the audience. Then they must understand that such prioritisation adds depth to the account in that it brings some material to the foreground and leaves other material in the shadow.

The next step is to be conscious of the passage of time in a story and to use that realisation to add pace – be that slow, quick, or variable – to the story telling. Finally there is the magic of taking the audience into the story, magical because its effect is to have the audience with the witness and thus accepting of that perspective.

To take the courtroom audience into an imagined world of past events requires setting a common ‘environment’. A group watching a film are all seeing and hearing the same images. Each member of a group listening to a story can ‘fill their head’ with a different imagined world, a different Pandora. That won’t do, not when there is jury that must be persuaded. A commonly experienced 3D world is required. For advocates this means the skill of working quickly and well with the witness to establish a base line position in the court room so that the audience is drawn to see the following scenes from the common baseline, be that the jury rail of the front of the public gallery or some other ‘line’ in the court room. Of these options where there is a jury the jury rail is best because it means the jurors stay where they are, but the advocate and the witness must describe everything as though they too were among the jurors.

The court room, being the place in which the jurors can see and hear, becomes the touchstone for ensuring that descriptors of distance, direction, lighting, and noise are commonly experienced. If the jury rail is the baseline then short distances are to points in the court room from that rail. When using a diagram it is a good idea to have the witness orientate that diagram so that the jurors understand it from their perspective, ie the jury rail again. Directions are given from the baseline: ‘If looking straight ahead from the jury rail is 12 o’clock, then your direction was what number from 1 to 11?’

Film audiences are drawn into the story by the director’s craft. Storytellers draw their listeners into the story. The advocate too must draw the decision makers into the witness’s story by the skill of setting the scene, prioritising the events within the story, and creating an atmosphere within the court room – all through teamwork with the witness. The advocate directs on direct. That’s persuasion.

Hugh Selby (c) November, 2010.

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.

More on Language ,Word Choice, and Persuasion

by
Hon. Robert L. McGahey, Jr.

I very much enjoyed Joe Lester’s recent post (available here) about language. It made me think of some problems I’ve noticed over the years with lawyers and that I’ve tried to correct with my students.

1. The TiVo moment. Q: “When the Defendant and the victim met up at the door, what did he say to him?” A: “He said: ‘What’s going on?’ Then he said: ‘Everything’s OK.’ Then he said: ‘I’m sure it is.’ Then I heard a gunshot.” Do you – or the jury -- have any idea of who said what to whom? Sloppy use of pronouns can produce what I refer to as TiVo moments: the factfinder has to pause the trial story for however long it takes to sort out what was said by what actor. By the time that’s done, the factfinder has to fast forward to catch up with the ongoing testimony -- and may have just missed the most significant testimony in the trial. This fix is easy: use names instead of pronouns. (Lawyers need to remember this in opening statements and closing arguments, too.)

2. False Qualifiers. How many of us have used a headnote like “Let’s talk a little bit about your educational background” or “I want to ask you a few questions about the intersection”? I suppose we say those kinds of things because we think it makes us sound more conversational. However, phrases like these are dangerous because they put a qualifier on the line of questions that follows. What if the fact finder’s “little bit” is shorter than the lawyer’s “little bit?” The juror stops listening when he reaches his “little bit” and may get seriously aggravated if counsel drones on after that. And you know that when someone says “a few questions,” some other persnickety person (like me) will start counting; the current leader in the clubhouse is 167 questions.

3. Watch out for the Grammar Police. The lawyer is winding up his so-far first- class opening statement: “At the end of this case, my client and me will ask you to bring back a verdict in the amount of one million dollars.” If a member of the Grammar Police (like my wife) is on that jury, the lawyer’s persuasive power just dropped like a stone. We need to make sure we use “I”, “me”, “him” and “her” correctly. The jury expects us to sound like educated people, albeit not stuffy, pompous or condescending ones.

4. PWC. Did I just say “albeit?” I shouldn’t have. My late Mother-in-Law was a grade school teacher for more than thirty years. One of her grading codes was “PWC” for “poor word choice.” Lawyers are notorious for this. We use legalisms, long words where short ones will do, or go the other way and attempt to sound “normal” by using inappropriate slang or catch-phrases. Clarity and understandability should be the keys. As Chris Tucker said in Rush Hour: “DO-YOU-UNDERSTAND-THE-WORDS-THAT-ARE-COMING-OUT-OF-MY-MOUTH?” Ooops. Sorry.

5. Words that mean something different to lawyers. This is a variant of PWC. An example: Q: “Let’s talk about your relationship with your boss.” A: (from indignant employee): “I don’t have a relationship with my boss! I’m just his administrative assistant, nothing more!” The word “relationship,” beloved of lawyers, clearly means something else to most civilians. The fix: Q: “Let’s talk about how you and Mr. Schmit get along at the office” or “Let’s talk about the way Mr. Schmit treats the people that he supervises.” There are lots of other words like this.


There are lots of other language mistakes that we all make every day. I’m not suggesting that we want to sound like Olivier doing Hamlet, but only that we remember that the words we use are some of the post powerful weapons in our arsenal -- and we want to deploy those weapons effectively.

Word Choice and Persuasion

This post was written by Professor Joe Lester, Director of Advocacy Programs & Professor of Law at Faulkner University in Montgomery, Alabama.


It is not what you say that matters, but rather what the jury hears that counts.

My seven-year-old boy Christian was in the back of our family van singing “chicken nugget, chicken nugget.” While the words were peculiar, the tune was familiar. When asked what he was singing he merely repeated “chicken nugget, chicken nugget.” Figuring it to be a song from his imagination I wondered about the origin – fearing it was going to be a request for fast food. I was surprised to hear him say that he did not make up the song; he heard it on the radio. He once again sang “chicken nugget, chicken nugget” but this time the tune struck a chord. “Christian,” I said, “I am pretty sure the words to that tune are ‘Rick and Bubba, Rick and Bubba.’” The song was an advertisement for the national morning radio show. Christian laughed and told me that I was being silly and that I did not know what I was talking about. He then sang once again “chicken nugget, chicken nugget” this time with a slight giggle as he believed his father to be from another planet.

How many times does our story-telling fall off-track because of unintentional miscommunication? Students often do not give enough attention to their choice of words. When our language is sloppy we lose the ability to control our message. To illustrate this point I do the following exercise.

I ask my students to yell out the first thing that comes to their mind after I give a description of a person. I then say the following one at a time after waiting for responses from the class after each: the woman who takes care of my children; the woman who cleans my house; the woman I hooked-up with last night; my first wife; my current wife; my life partner; my best friend; and my co-pilot. All of these are descriptions of my wife (FYI: don’t ever actually introduce your wife as your “first wife” unless you want to sit alone for the whole evening). But each of these phrases has baggage. They lead the listener to make incorrect assumptions merely because of the sloppy language. Is this really a danger? Absolutely. It only takes one juror perceiving the evidence in a contrary manner to hang the jury.

The inferences a jury draws should be carefully crafted by the advocate so that they can persuade the whole group. Leaving individual jurors to draw inferences based solely on their own experiences will diffuse the effectiveness of the presentation. I often use the common exercise of having a student try to describe a person in a picture to the class to see if they can get the jury to all visualize the exact same person. One time a student described a person in the picture as a “typical Auburn student.” I could see by the reaction of the class that the description created many different images in the students’ minds. That comment produced a wide spectrum of images ranging from very positive to very negative depending on their predisposition regarding the Alabama/Auburn rivalry. While it made perfect sense to the story-teller the listener was confused. Confusion does not assist persuasion.

So how do you check your language? A simple solution would be to bring in an outsider to observe your presentation. Stop periodically to ask the outsider what they know and what they think the case is about. If your story and the outsider’s story match, your language is sufficiently precise. If they do not match, you have to identify the problem language. To make that task easier ask the outsider often what they are thinking -- not just at the end. Just because it was said, does not mean it was heard. At the end of the day all that matters is what the jury hears.

You can’t stop a wildcard like Christian from misinterpreting the information, but you can minimize the danger by carefully selecting your words and understanding that everything the jury hears will leave an impression. Just make sure it is the one you meant to leave.

Teaching Cross-Examination with a Trial Rhythm

I've been teaching cross-examination as a stand-alone module in my advocacy courses for the past several years by assigning students to prepare a cross-examination of a witness independent of any direct examination. My reasoning was that I wanted students to learn how to use case analysis and cross-examination to advance their own case theory; I wanted them to avoid the reactive cross-examination that occurs when an advocate writes or prepares her cross-examination during the opponent's direct examination. I felt that coupling direct and cross examination in one exercise presented too many difficulties for a basic trial advocacy course. In my advanced course, I have used exercises that pit students against each other with a direct and cross examination, but the students in these courses have already tried at least a couple of mock trials in the classroom environment and understand the different purposes of direct and cross.

A few students have complained that the cross-examination exercises I've used seem sterile. They feel it's difficult to get in the mood and mindset for cross-examination without a direct examination to set the stage for them. Some have even claimed it is misleading to call the exercise cross-examination--that it would be better called Examination by Leading Questions or something similar to that.

I experimented with something new (at least for me) to help teach cross-examination in my summer term advocacy class. I was pleased with the results and intend to use the same formula for my larger trial advocacy class during the regular school year.
My experiment wasn't revolutionary, but it did seem to make a difference for the students. Also--it helped me kill two birds with one stone by adding an impeachment by prior inconsistent statement element to the exercise.

Here's what I did.

As with past cross-examination exercises, I assigned the students to prepare a cross-examination of a witness from the case file. I also advised them, however, that I would conduct a direct examination of the witness that would include some facts inconsistent with the case file.

As an aside, I use two case files in class. Half the students prepare the advocate roles for Case File A and the witness roles for Case File B, and the other half prepare advocate roles for File B and witness roles for File A. I use an assignment table that lets them know what to do for each exercise. I also have an opposing counsel assigned to make objections as necessary (this will be the subject of another post).

At the beginning of class, I called up a student who was prepared to play the witness role for Case File A. I met with the student for a couple of minutes and provided some facts inconsistent with the case file. I then conducted a direct examination of the student/witness. The advocates for Case File A then conducted their cross-examinations. I did not leave the same witness up there for the entire time; the other witness students took their turns but were bound by the direct examination I had conducted as if they had been the witness.

Halfway through the class, we did the same thing for Case File B.

I think it worked well, for several reasons. First, the students got to conduct a cross in trial rhythm, immediately following a direct examination. Second, since they had no idea what the inconsistencies were going to be, they had to listen carefully to the direct to identify them and use them. Third, their advance preparation for the assignment ensured that their cross-examinations were planned, and not just reactive. Finally, the experience of cross-examining a witness who was being protected by opposing counsel was illuminating for many of them; I had one student who had not anticipated any objections and struggled through a cross-examination that was much more difficult than the one he had planned.

I'd be interested to get feedback on what I've done and find out what others are doing to effectively teach cross-examination skills.