Judge McGahey on Dramatic Trial Lawyers

Judge Robert McGahey of Denver, Colorado, is a frequent guest blogger. He is also a NITA faculty member and an adjunct professor at Denver University's Sturm College of Law. Prior to ascending the bench, Judge McGahey was a trial lawyer. And as a movie buff with an encyclopedic knowledge of movies about the law, he knows a thing or two about drama.

Why are trial lawyers so dramatic?

• We’re all roosters; we think the sun comes up because we crow. If you look at what we do, it takes a fair amount of ego. Our job is to convince six or twelve people that we’re never going to see again that what we are telling them is the truth – and then getting them to act on that truth. That requires a substantial level of self-possession and self-confidence. The danger comes when we forget that this isn’t about us; it’s about our clients. Far too many of us lose sight of that. When we do, we lose that “genuineness” or “authenticity” that others have remarked on. 

Why Are Lawyers So Dramatic: The Sequel

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

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

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

Country Music and Storytelling: A Fun Advocacy Exercise

Last May, I took two long road trips within a few weeks of each other. I enjoy road trips and always have, whether I travel alone or with family and friends. I get to visit new places, listen to music for hours at a time, and think great thoughts as the miles roll by. These two trips were particularly meaningul to me: the first was to help teach an advanced trial advocacy course with my dear friend Joshua Karton at the Air Force JAG School in Montgomery, Alabama; the second was to attend the annual EATS conference at Stetson. Both of these events helped recharge a badly-depleted set of creative batteries, gave me new ideas for the upcoming academic year, and inspired me to want to be a better advocate and teacher.

To and from each of these destinations (nine hours each way to Montgomery; fifteen each way to Gulfport) I listened to a lot of country music. While it is easy to find country music on the radio in the American South, and difficult, sometimes, to find other musical genres, this was all by choice for me. I created an old-time country music station on Pandora, and that is primarily what I listened to. 

It occurred to me as I was listening that stories are one of the main reasons I enjoy this particular era and genre of music. Who could listen to Johnny Cash sing Folsom Prison Blues and not feel compassion for the imprisoned murderer whose story the song tells? Or not be nearly shattered emotionally by the lines—“And I’d trade all my tomorrows for one single yesterday/ holding Bobby’s body next to mine?”—from Me and Bobby McGee (whether sung by its author, country musician Kris Kristofferson, or by folk singer Janis Joplin, it’s an amazing song).

Altchiler's Advocacy Abattoir: Making the First Day a Memorable Event

Bob Altchiler is the founder and principal of Altchiler, LLC, and an adjunct faculty member in the trial advocacy program at Pace Law School. In the blog post below, he shares his memorable first-day introduction to trial advocacy. Something tells me students have a great time in Professor Altchiler's Advocacy Abattoir/Trial Advocacy Course.

I tried something new in my advocacy class this past semester. I walked into the courtroom, where my class was waiting for me. Before saying a word, with my class in the jury box, I handed to each of them a bloody body part, or an x-ray of a body part. (see attached samples). 

Then I left.

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

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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.

 

 

 

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.

Anxiety : you can mask it with feet, fingers and fun

For those students, or advocates, who know they speak too quickly, a simple use of fingers and toes may be the answer. 'Masking Fear with the 3Fs: Feet, Fingers and Fun' is a short video make at the NITA Public Service Attorney course in July 2010. Some students kindly volunteered their time.

The video is available on the TrialAdvocacy Channel on Youtube. Link to it here

New Advocacy Class - Icebreaker Exercise

This exercise is a variation on the opening statement drills Charlie Rose has described in an earlier posting on this blog. I use it at the beginning of the semester as an icebreaker exercise. The students have to interview each other, then give an opening statement or short speech about their interview partner.

I focus the students' efforts by giving them several mandatory interview topics:

1) Hometown

2) Educational background

3) Nickname

4) Favorite movie and why

5) Favorite ice cream flavor and why

It's always quite a bit of fun. It gets the students on their feet, and we always learn something interesting about everyone in the room. When it's over, I explain that this process is similar to trial in several ways: 1) the students have to interview someone and obtain information about them; 2) they have to decide how to organize their statement in the most effective way possible; 3) they have to stand in front of another group of people and tell a story.

I have 14 students in my summer term advocacy class, and it took about 40 minutes of our 100-minute block for this exercise. It's well worth it. In larger classes (I usually have a lecture section with 48 students that is divided into six 8-student labs), we still do the exercise, but not everyone is called on.

Opening Statement Drills

Drill #1.

Goals: Counsel will perform an opening statement focusing on a particular aspect or aspects of the doctrine of opening statements chosen by the instructor.

Situation: The opening statement comes from a current case file, a popular movie or other story known to the class. You can have them deliver an entire opening or a section, but you should narrow your critique to one of the seven principles of opening statements discussed earlier.

Requirements: Counsel will include one of the following in their opening statement as defined by the instructor. Set a time limit, perhaps 8-10 minutes for a full opening, less if you are only evaluating a portion of the opening. Elements you may choose to focus counsel on include:

1. Theme
2. Organization
3. Primacy and recency
4. Humanizing the accused or victims.
5. Language
6. No opinions.
7. Use exhibits.
8. Defuse weaknesses.
9. Incorporating anticipated instructions.
10. Physical presence.

There is no “school solution” to this exercise. Stop them during their statements if they deliver information that is objectionable, unclear, argumentative, or misleading. Concentrate on the aspect of opening statements that is the focus of this drill and on which you gave counsel notice to prepare. This also enables you to conduct many opening statement drills, because aspects of the same statement can be given more than one time, until the teaching value is exhausted.


Drill #2 - Tell Us a Little About Yourself.

Goal: To get the student on their feet talking in a story telling fashion. This drill is designed to produce the sorts of techniques that are necessary for a superior opening statement.

Situation: This drill works well in an introductory session or immediately prior to or immediately after a block of instruction on how to do an opening statement.

Requirements: The student will relate information about a portion of their life that they wish to share (or that you have specifically identified, such as Christmas morning, best birthday, wedding, ect.) using the fundamental principles of opening statements. Particular emphasis should be placed on telling the story by connecting the theme to admissible evidence.

Introductory Drills

I have provided some introductory drills to get the ball rolling in this subject area. Please feel free to add your own and we will share them through out our growing community. Where possible I have identified the source of the drill, but many of them have simply come down through the mists of time. They are shared at NITA sessions and in those places where advocacy professors gather, usually over some sort of liquid libation. We learn best when we learn from each other. Drills are one of those fun moments where that happens. The trick to drills is to make sure that the students are having fun and that they don't waste time. I usually divide my drills up into three sections - a goal, a situation and a requirement. You can label them any way that you feel works best. They are merely tools to teach with, although sometimes they serve as a great source of fun!

Drill # 1 - Getting to know you.

Goals: Get to know students, introduce basic questioning techniques, and introduce the professor to the students.

Situation: Classroom/courtroom environment, new class - no fact pattern assignment necessary.

Requirement: Student displays familiarity with basic questioning techniques.

Performing the drill: I have the students sit in a circle, joining them. I then begin to go around the circle asking open ended questions of each student. We begin with names, but also move onto where you went to school, why are you taking this course, how do you like the law, where are your parents from, etc. These questions are the type of open ended questions you would ask to get to know something new about someone. I do not tell the students that I am using basic questioning techniques while performing this initial part of the drill. Once we have done the entire room I tell the students that I have just performed a direct examination of each of them, one designed to introduce the witness to the jury. I then turn the table, allowing the students to question me, with the following caveats:

1. It must be an open-ended type question.
2. Each student can ask one question, and each question must build upon the previous answer or provide a Headline that indicates a change of subject.
3. I reserve the right to not answer questions that are guilt assuming or meant solely to embarrass, on the basis that such questions are not allowed in court.

Students usually warm up to this drill in a big way, attempting to learn something about the professor that they might otherwise never learn. It breaks down barriers, allows you to get to know them, and gets them in the habit of listening to answers and forming their next questions based upon the answer that they hear. It serves well as an introductory drill.

Drill #2 - Tell Us a Little About Yourself.

Goal: To get the student on their feet talking in a story telling fashion. This drill is designed to produce the sorts of techniques that are necessary for a superior opening statement.

Situation: This drill works well in an introductory session or immediately prior to or immediately after a block of instruction on how to do an opening statement.

Requirements: The student will relate information about a portion of their life that they wish to share (or that you have specifically identified, such as Christmas morning, best birthday, wedding, ect.) using the fundamental principles of opening statements. Particular emphasis should be placed on telling a story as outlined in FTA.

Drill #3 - Closing Argument from a Fairly Tale.

Goal: To get the student on their feet arguing the meaning of a case whose facts are known to the entire class. If you choose a fairytale or children’s bedtime story the facts should be known to everyone. You can then assign sides for both prosecution an defense, identify the charged offense(such as breaking and entering for Goldilocks and the Three Bears) and then give the students 5 minutes to prepare. This drill is designed to produce the sorts of techniques that are necessary for a superior closing argument. It will assist you in identifying which students have raw talent and which students can quickly improvise and adapt.

Situation: This drill works well in an introductory session or immediately prior to or immediately after a block of instruction on how to do a closing argument.

Requirements: The student will argue the meaning of the facts in relation the identified offense. This is an excellent opportunity to point out the need for proper case analysis when forming an argument.

Drill #4 - Truth or Lie?

Goal: To get the student on their feet communicating both truthful and untruthful facts. The goal is to teach the students about physical presentation and the impact that falsehoods have on our in court delivery. This drill is designed to get the student thinking about physical presence and truth in the courtroom.

Situation: This drill works well in an introductory session or immediately prior to or immediately after a block of instruction on the impact of physicality in the persuasive process.

Requirements: The student will write down four facts about themselves, one of which is a lie. They will then tell the rest of the class each fact, one at a time, delivering them as though they were making an opening statement. Based on body language, eye contact, and dubious substance, the audience guesses which fact is a lie. After all students have placed their votes, the student discloses the real lie. This exercise is good if you are pressed for time.

Drill #5 - Modulation and Inflection.

Goal: To get the students playing with voice inflection and modulation. This drill is designed to show the students that the way in which words are delivered can have as much persuasive impact as the words themselves.

Situation: This drill works well in an introductory session or when you are pressed for time.
Requirements: Choose a short phrase. Have one student repeat the sentence, each time the student emphasizes a different word using voice inflection. Alternatively, randomly select students to emphasize different words in the sentence. The following are sample phrases, but you should feel free to use your own.

• This is a really stupid idea.
• You can’t handle the truth.
• Are you talking to me?
• When did he say he would give you the money?
• I feel your pain.
• I Love you man.