Advocacy Agony Aunt: Courtroom Technology in an Unwired World

Anonymous said...

Dear Advocacy Agony Aunt,

I have a question about teaching courtroom technology (visual presentation programs, trial software, and the like) to law students. Is the juice worth the squeeze?

The reason I ask is that most of the students I teach practice in smaller communities where there is virtually no likelihood of any of these technologies being installed in the courtrooms in the foreseeable future; budgets are simply too tight. While there is no prohibition against bringing A/V and computer equipment into courtrooms, this must occur at the client's expense--another problem in our straitened economic climate.

Our law school courtroom is well-equipped with these technologies. Outside of federal courtrooms, none of the courtrooms in the area have--or are likely ever to have--these capabilities. I suspect this situation is not unusual in the United States, or even in other countries.

Am I better off teaching the basics that worked well in the 19th and 20th centuries, or should I enter the brave new world of technology and teach its use even if it will likely never be use?

Sincerely,

Larry Luddite

Hugh Selby Replied

Dear Larry,

As your cousin twice removed I sympathise, not only for your predicament but for your students and their future in olde time court houses where the cisterns are still noisy, the windows open (if the sash cords have been replaced), and people sit on wood rather than these new fanged plastic things that are extruded from one size fits all molds.

But I digress. Your students (and you too I am sure) are familiar with powerpoint, with mobile phones, with photocopiers, and marking pens. These are the provisions at the half way house between the high tech and the blackboard with its carcinogenic chalk dust.

Step 1: Tell em to use that camera in the mobile phone to save scenes, scribbled notes, documents left in the wrong places, text from a hardcopy of the reported case that will trump the other side.

Step 2: Because they started to be bombarded with powerpoint in elementary school they have grown up to think it's necessary. So, have them prepare powerpoint slides and use those slides as a vehicle to improve their persuasion: that is, they need to learn what should and should not be on those slides and how to prepare the page. By the way NITA has a book or two on this subject.(See our advocacy link to NITA and go to their online bookstore.)

Step 3: Get thee and them to a whirly photocopier. Make sufficient copies of each and every item so that every person involved in making a decision will have a copy in front of her or him.

Step 4: Ensure that each of those people has a pen, pencil, marker so that they can make their thinking marks on the relevant copy. That way they own it. This is so much better than on and off light sources (such as screens in court rooms). Once those are turned off that's the end of their influence.

IN summary, leave the 19th and three quarters of the 20th century behind. Embrace the years from about 1980 to 2005 with glee.

March 2, 2011 5:53 PM


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The future of Advocacy Training? iPads and iPods and Podcasts!

Folks:

Visual aids as an effective teaching and learning tool are well known. See on this Blog Chris Behan's entry about Lonesome Dove (available here)

Another use of such aids is to reinforce some fundamentals for students by making sight and sound record that students can access as often as they want. Posted here is an example of a podcast that you could easily produce and distribute to students. I have produced several of these for use in trial advocacy courses. They allow the student to get a mini-lecture, see a demonstration and then hear a discussion about how to perform the skill correctly. I've also done mp3 podcasts as well.

This happens to be one of a series that is available through www.roseadvocacy.com, the website that accompanies the second edition of my trial advocacy book. I created it on a Macbook Pro using iMovies. You can get the same effect with any of a host of video editing programs available on a windows platform too.

It would be good to see and hear a few more such training aids on this blog so we all look forward to your posting them.

Enjoy!

Charlie

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.

Things 'Good' Lawyers do Badly

By
Hon. Robert L. McGahey, Jr. [Bob is a trial judge, NITA instructor, and adjunct law school professor from Denver, Colorado].


I sit there on the bench, mentally reading myself for the blow. And sure as the sunrise, it comes: another “experienced” trial lawyer does something so painfully WRONG that the whole trial may be lost. Why does this happen? And how can we, who teach advocacy, help to stop it?

Some background: I’ve been a trial judge for more than ten years now, and have presided over civil, criminal and domestic courtrooms. Before that, I spent twenty-five years as a practicing trial lawyer, and tried over one hundred jury trials during that time. For about twenty-five years, I’ve been teaching at NITA programs on a regular basis. Finally, for about twenty years, on and off, I’ve been an adjunct professor at The Sturm College of Law, University of Denver, teaching both Basic and Advanced Trial Practice. Like Sergio Leone, I’ve seen the Good, the Bad and the Ugly. For this post, I want to concentrate on the Bad.

Let’s start at the very beginning: jury selection. The inability of even first-class lawyers to conduct a meaningful and useful voir dire is shocking. In a day and age when trial judges (including me) put time limits on voir dire, shouldn’t lawyers make the best use possible of those precious minutes? Instead, trial after trial, I see long, drawn out analogies or hypotheticals that leave the venire confused and glassy-eyed. Or a list of leading questions that simply ask the potential jurors to say “yes” or “no” without conveying any information about the jurors feelings or thoughts. Or the arrogant lawyer asking a trick question and then berating the juror who falls for the trick and gives a “civilian” wrong answer to a technical legal point. This is hardly an exhaustive list.

Or how about lawyers who don’t understand the value of starting off with a believable, interesting story as opposed to a dry recitation of facts. Thus, the opening statement where the droning of “the evidence will show,” goes on until the lawyer mercifully runs out of items on a checklist, even though the jury is now infected with a terminal case of “MEGO” (“my eyes glaze over.”) And at the other end of the trial, the attorney who thinks that arm-waving, voice-raising and snarky digs at the other side are a good substitute for a reasoned, logical, persuasive argument delivered with passion, not emotion.

Or how about failing to use exhibits to make complicated matters understandable? Or preparing experts so that they teach, but don’t lecture? Or understanding enough elementary stagecraft to avoid making important points when the jury is looking at your keester? Or, or.or…………

Obviously, one answer is better skills training in law school. (After all, this is an advocacy teaching blog!) Whether we’re full time faculty or part-timers, we owe it to our students to teach them the best techniques we can in the most effective way we can. That means we should constantly re-examine how we are teaching advocacy skills. We find great teachers or practitioners or judges to help us present concepts or ideas we may not be as good at presenting; I have my colleague, Judge Christina Habas, come in and teach my Advanced class about voir dire, because her thoughts on that are more intelligent and forward-thinking on that topic than anyone I know. We can talk to judges and find out what they think are the weak points of advocacy in their courtrooms. We can ask our friends in the teaching business how they do it; I’ve learned new ways to do stuff just by talking to Jeanne Jourdan and Charlie Rose and Chris Behan. We can look to “non-legal” sources for ideas and examples: Uta Hagen’s books on acting for how to develop empathy with an audience; Adam Gopnik’s Angels and Ages for how Lincoln and Darwin used language for “popular persuasion;” Gregory Peck as Atticus Finch delivering that most powerful “ask”: “In the name of God, do your duty. In the name of God, believe Tom Robinson.”

What we cannot do is make the mistake that so many lawyers make: believing that we are being informative, helpful and astute, when we are really being boring, confusing or wrong.