In an adversarial legal system the quality of advocacy directly affects the outcome, and hence justice. This blog is for everyone -however they serve our legal system - who is committed to improving the teaching of advocacy skills and ethics so that parties and the community are well served by persuasive and ethical advocates.
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Showing posts with label Opening Statements. Show all posts
Showing posts with label Opening Statements. Show all posts
One of my favorite advocacy courses is NITA's Trial Skills for Legal Services Attorneys Course. The course is taught at NITA headquarters in Colorado. NITA fully funds the tuition and course expenses for approximately 48 attorneys from legal services agencies across the country. The attorneys (or their agencies) are responsible for their own transportation and lodging arrangements. The faculty all donate their time during the course. The latest iteration of this course took place in Boulder on August 11-14.
Obligatory faculty photograph at the August 11-14 2015 Trial Skills for Legal Services Attorneys Course.
Mark Caldwell sent me a link to an Opinionator article on writing workshops. Written by Amy Klein, the article is entitled, The Writing Workshop Glossary. It's a tongue-in-cheek look at the world of writing workshops. Having attended a few writing workshops myself, I found Klein's observations enjoyable to read, and right on point. As Mark pointed out to me in an email, the piece also has some application to what we do as advocates and advocacy teachers. Especially as advocacy teachers, we spend a great deal of time listening to the work of others, critiquing it, and offering suggestions for improvement. These efforts--like the criticisms of the writing workshop participants in Klein's article--are not always appreciated by the recipients, especially in the moment. Nonetheless, learning to listen to the viewpoints of others and adjust one's work accordingly is key to the development of advocates.
I recently returned home from helping to teach an advocacy training course in Gaborone, Botswana. The course was sponsored by Justice Advocacy Africa and the Law Society of Botswana (LSB). JAA is a U.S.-based nonprofit organization dedicated to promoting "confidence in and respect for legal institutions in African countries through providing professional advocacy training for African lawyers." The LSB regulates practicing lawyers in Botswana, promotes pro-bono service, and engages in activities to promote greater access to justice in Botswana.
Faculty Members in the Botswana course at the end of the course. The faculty were presented with traditional bridal blankets, a gift from the Law Society of Botswana. Male faculty were instructed in the proper procedures for placing the blanket on their spouses.
A.J. Bellido de Luna coaches trial teams at the University of Maryland Francis King Carey School of Law, where he is also the managing director of clinics. His team made it to the final round of the inaugural Show-Me Challenge Voir Dire and Opening Statement Competition, hosted by the University of Missouri at Kansas City School of Law.
Here is AJ's account of the competition.
The Inaugural National Voir Dire Invitational Show Me Challenge, hosted by the
University of Missouri Kansas City took place the weekend of April 12. UMKC’s
Director of Advocacy, Rafe Foreman and his army of volunteers made sure that
this first time competition was going to be a first class event. From all of
the comments I heard throughout the tournament, they exceeded all expectations.
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:
Judge Bob McGahey shared the following link to a New York Times Opinionator blog, entitled Outlining in Reverse. The blog author, Aaron Hamburger, discusses a technique in which he improves his stories and novels by writing them first and outlining them later. Writing without an outline helps him write freely and without artificial constraints. Outlining after writing helps him more objectively evaluate and re-write his own work.
For law students and lawyers, reverse outlining is a counter-intuitive technique. Most legal writing professors teach law students that an outline, created at the beginning of the process, is the key to creating well-organized memoranda, motions and briefs. Many practicing lawyers write outlines before writing legal documents. These are sound practices, not to be gainsaid. Starting with a well-organized outline ensures thorough work and promotes efficiency.
For storytelling, however, outlining first can impede the writer's creativity and interfere with the development of the story. Creative writing teachers encourage students to begin with a free-writing exercise, not an outline. Rewriting and shaping the story that emerges from a free-write is an important part of the process.
So, what does this mean for us as lawyers and teachers? Perhaps we ought to re-think the way we teach our students to write their opening statements, in particular. If the story is key, we ought to encourage them to get the story right first, then outline the opening they've created, analyze it and plug in the legal framework of the case that comes from their case analysis.
I have recently experienced some success with focusing a group of students on the story of a case, rather than its legal analysis. (Here's a link to my recent blog post on the topic.) What I've noticed is an overall improvement in the quality of their work. In the past, I've had students focus lay out, in somewhat mechanical fashion, the elements of the claim or charge and how they intend to prove or disprove them. When that's done, we try to integrate a story line, but often it sounds wooden and contrived. This time, we did the story first. It's amazing to see how everything else falls into its proper place if the story is right.
Got this in the mail this week from Rafe Foreman at UMKC. It's a voir dire/opening statement tournament, the only one of its kind in the nation. I highly recommend signing up for it. If you haven't been to Kansas City in the spring, you're missing out. Your students will love the location and the competition.
While hyperlinking my way through cyberspace today, I stumbled on a great article in Psychology Today, The Inside Story, about the central importance of storytelling to the human condition. I intend to share it with my students, because it expresses the why of good storytelling much better than I've been able to.
In my experience, many advocacy students experience difficulty finding the story at the heart of the case. This affects their case analysis, presentation of witnesses and ability to persuade a jury. So I'm always on the lookout for ways to help teach them this valuable skill.
After leaving the Educating Advocates conference in Gulfport two weeks ago, I made a tremendous personal and professional sacrifice by traveling to Ireland to teach in a study abroad program that is jointly run by the UMKC and SIU law schools. Some people are called upon in life to go the extra frequent flier mile from time to time, and this year I took my turn. And if the course administrators would let me, I'd make the same sacrifice next year.
What does this have to do with advocacy? I'm teaching a class on war crimes tribunals, and, since I also teach evidence and trial advocacy, we take a look at some of the advocacy triumphs and mistakes that have occurred and continue to occur in these tribunals. For some truly epic advocacy gaffes, I recommend the documentary film Milosevic on Trial, which includes actual trial footage of the unrepentant Milosevic smirking his way through trial at the expense of his often hapless opponents. There is a great scene in which a paramilitary captain theatrically disavows his sworn statement on the stand after being cross-examined by Milosevic. The panicked prosecutor attempts to impeach the captain, only to be interrupted by the judge, who advises him that he might want to reconsider the wisdom of undermining the credibility of his own witness. Another witness and Milosevic engage in a name-calling battle in which the word "swine" is used with great effect. There are many opportunities, in short, to pause the DVD and discuss the good, bad and ugly of the trial from an advocacy perspective.
Two days ago, our student group visited the Criminal Courts complex in Dublin. There were three murder trials and a rape trial on the docket. I was able to watch jury selection, talk to a couple of barristers, and watch the prosecution's opening in a murder trial.
Jury selection is much different than the voir dire we conduct in the states. The only information known to the attorneys about the jurors is the name and occupation of the juror. That's all. The judge gives some prefatory instructions to the jurors, advising them that they have a duty to advise the court if they know the defendant or anything about the crime. The jurors are then sworn individually. Before each juror takes the oath, the attorneys must decide--then and there, without the benefit of questioning--whether to challenge the witness. Each side gets 7 peremptory challenges. These are true peremptories, without the requirement of any explanation of all. If there is a challenge for cause, the attorney must also make it before the juror takes the oath. The most common challenge for cause is that the juror and attorney know each other in some way. For a murder trial that will take a week and a half, it took about 20 minutes to impanel the jury. Jurors can also challenge themselves by giving reasons they don't think they'll be able to give the trial their full time or attention; I saw several such challenges granted almost instantly by the judge, in one case before the juror could even finish her sentence.
I have often thought we'd be better served by such a system in the United States. Basically, the attorneys try the case in front the first 12 people in the box who meet the fairly broad criteria for service. I do, of course, recognize the disadvantage of not being able to explore the potential bias of the jurors, but let's be honest about this: in most courtrooms attorneys use voir dire for other purposes, such as manipulating the jury or trying the case before opening statements are ever given.
Speaking of opening statements, in an Irish criminal trial the prosecution opens, but the defense does not have the opportunity to open until the close of the prosecution's case. The students and I watched a 20-minute prosecution opening statement in a drug-related shotgun slaying.
Bad advocacy is universal, I'm sorry to report. The opening statement reminded me of an example Tom Singer used to give in Jim Seckinger's intensive trial advocacy course. It began by repeating nearly all of the prefatory instructions the judge had given the jury about how a criminal trial is organized. It thanked the jurors for fulfilling their constitutional duty to well and truly judge the case. It lectured on the differences between the burdens of proof in a civil and criminal case. It was loaded with legal terms and jargon, some of which were explained in a patronizing manner. It praised the defense for its anticipated cooperation in not contesting the admissibility of some documents and evidence. It explained that sometimes, witnesses are called out of order and documents are introduced out of sequence because of scheduling requirements. It read aloud the charges against the defendant. Ten minutes into the opening statement, and only then, did the prosecution mention for the first time the story of the case. But it was a rambling, incoherent and disconnected story. I still don't know what happened in the case, and unfortunately, I wasn't able to watch the rest of the trial to find out.
I had expected far more from a man wearing a black robe and wig and bearing the title of barrister. In reality, it was no different from the hundreds of abysmal opening statements that are delivered in American courtrooms every day.
It was heartening to see that most of the students intuitively recognized the problems with this opening statement. They seemed genuinely shocked that it had been so ineffective. Back on the bus, a student asked, "is this how trials are supposed to go?" I advised the student that either Rafe Foreman (who teaches advocacy at UMKC) or myself would fail them for giving a similar opening statement. I then spent several minutes explaining what was wrong with this opening statement.
The problem, of course, is that even though trials are not supposed to go like this, they do. And the challenge, as Hugh Selby has pointed out before on this blog, is to come up with a way to help our students rise above the mediocre advocacy that so many lawyers settle for in the courtroom.
As we all know, storytelling is an important part of good trial advocacy. In future posts, I intend to explore more thoroughly how to teach good storytelling to advocates. I feel this is an area in which we often fall short; I've long been frustrated with the standard "this case is about ________" formula we use so often in classes and at competitions. There's far more to good storytelling than a bumper sticker theme.
Recently, I was inspired by one of my trial ad students. Wanting to improve his advocacy skills, he enrolled in a Storytelling and Oral Tradition course at Southern Illinois University Carbondale. He loved the course and felt that it helped him immensely. I am planning to reach out to the Speech Communication Department at the school to see what collaborative opportunities we might be able to develop with this course; the opportunity for cross-campus collaboration is one of the real advantages of teaching at a law school on the campus of a comprehensive research university.
But in the meantime, after reading an article in an in-flight magazine on a recent trip, I've learned about and become enamored with The Moth, a storytelling program that works on developing and preserving the great American tradition of storytelling. Their website is http://themoth.org/. You can download podcasts of stories or even stream some of them live. Their website is a marvelous resource. On top of that, the stories are exceptional. I highly recommend going to the site and listening to a few stories. You won't regret it.
Jim Gailey is the principal in the Miami Beach criminal defense and civil litigation firm James R. Gailey & Associates. He is also a NITA instructor and a trial team coach for the University of Miami School of Law in Coral Gables, Florida. Although he labors under the handicap of being a Miami Dolphins fan, he is nonetheless a great teacher and an astute observer of human nature. These are some of his observations about the Casey Anthony Trial.
The Quality of Advocacy at Trial
With the exception of the rebuttal final arguments (which were very good), the advocacy level went from good to below average. The prosecution advocacy was overall much better than the defense advocacy. Of course, at the end of the day it did not matter because the lack of any proof of HOW the child died, effectively intercepted any consideration of WHO did "it" (begs the question of what "it" actually was). So I suppose the lesson is that advocacy cannot substitute for evidence, and poor advocacy by your opponent will not save a case with no proof.
Much of what I saw could only serve as a model of what not to do ("would you please explain" questions on cross, etc.) (not quite as bad the in-court demo by the prosector in OJ case with the glove, but at least the prosecution lost and it provided a "teaching moment" on what not to do).
Not sure how we implore our students to only lead on cross or have a consistent theme, etc. when this did not affect the ultimate outcome.
What the Alternate Juror's Comments Teach About the Case
Here are some of the comments that the alternate juror made in an interview within an hour or two of the verdict.
"It was probably a horrific accident that Dad and Casey covered up and it snowballed and got away from them"
Since there was no evidence of an accident or a cover-up, the interviewer asked the obvious question: "What evidence was there that is snowballed and got away from them."
After some stuttering and stammering he then repeated that it was "such a horrific accident that they didn't know how to deal with it. And the family was very dysfunctional and instead of admitting to the accident they chose to hide it, for whatever reason." He was then asked why George Anthony would allow his daughter to face a potential death penalty instead of admitting to the horrific, innocent accident. In response, the alternate juror laughed and said "that's a really good question that has to be answered by George. He was very combative and I personally thought he was hiding something that he chose not to answer."
When asked about all the lies that she told for the 31 days after the child was last seen, he said that it "did not affect him much at all because of what came out at trial about how dysfunctional the family was." While this "dysfunction" was the suggestion by the defense opening statement, there was no actual testimony about this "dysfunction."
Until the deliberating jury decides to "cash in" on their new found fame, we will not know what the thought process of that jury was. The comments by the alternate however, do provide some insight into the workings of this particular jury and this particular trial. To me, it reemphasizes the special importance of the opening statement. The question of ethics aside, the jurors were "shown" a despicable picture of the defendant's father by accusing him, among other things, of molesting his daughter. Though the juror admitted that there was never any proof of this and consciously they did not reach the conclusion that he was in fact a child molester, it did create an image of him that colored how they viewed his testimony. (He was "combative" and was "hiding something.") Further evidence of the importance of the opening statement was that for 6 weeks both sides tried this circumstantial case with multiple experts and a great deal of forensic evidence. Nevertheless, the jurors deliberated without any questions and without any interest in hearing back any of this technical testimony or any of the videotaped statements or 911 calls. Their gut "told" them (or caused them to speculate) that there was more to this story than the prosecution had shown them and as a result, they outright rejected the notion that the defendant mother committed any crime in connection of the child's death.
I am sure that more will come out in the coming days and weeks and eventually, many of them will appear and the case will be analyzed more fully from their perspective. At this point, however, the result and the comments that we have heard thus far, seem to suggest that although we tend to glamorize the closing argument portion of the trial as making the difference, in many cases, the jury has pretty much made up its mind by that point in the trial and the less "glamorous" opening statement, shapes the lenses through which the jury will view the evidence and consequently affects the outcome in a more significant way. (Having myself served as a juror in a 1st degree murder trial while a law student, what i learned inside that particular jury room has shaped everything that I have done as a trial lawyer.)
I'm including a link (available here) to a current news story about a young advocate whose trial performance was so inept that the judge declared a mistrial.
As John Baker, president of NITA, said in a recent post (available here)--advocates need training now more than ever. The burden is increasingly shifting from law firms and government agencies to law schools. When you read the article I've linked, scroll down to the bottom of the article and glance through the comments. Setting aside the predictable vitriol against this young man, many comments focus on . . . you guessed it, the quality of the legal education he received. I have no idea whether or not this young advocate took trial advocacy in law school, but from the description of his opening statement, my guess is that he did not--or if he did, he chose to ignore whatever he was taught.
I was working with a young group of lawyers this week and we were struggling with crafting persuasive opening statements. Given their level of experience these advocates are quite accomplished. I suggested that each of them prepare, on their own, an opening statement based on a criminal case that I provided. I then had them present their openings one after the other.
It was amazing to see the degree of similarity between their presentations. Each told a story in a relatively chronological fashion. They focused on both the strengths and the weaknesses of their cases and ended with the standard plea to the jury that you could hear by stepping into any local courtroom.
They were procedurally correct, cohesive and quite presentable. Unfortunately they did not sing. I literally found myself unable to remember any specifics within 10 minutes of having heard them. Why?
I think it is because they did not put a question in my mind that I would spend the rest of the trial trying to answer; the openings simply lay in the courtroom – like a day old buffet that no one has the will to put away. I was not energized to pay attention to their case in chief, in fact, I was somewhat concerned about how they might present it intelligibly - and this was from some good lawyers.
So, I have these advocates who are capable, accomplished and competent. How do I make them something more? There's the rub....
All of us who teach advocacy have struggled with the competent attorney who has done the okay thing, the safe thing - the predictable thing. What to do? There are a lot of different ways to potentially proceed, but the one I chose was to focus them on the core of the reason behind their case and how the opening statement reflected that. I wanted them to identify the essence of their case so we could see if they had told the story that would bring us to that point.
I wanted to know the core of what they were trying to prove, why it was important and how they were going to do it.
The answer to these three questions leads an advocate to the path they must take during the opening statement to capture the jury’s attention. When searching for these answers force the advocates to answer the questions succinctly.
They should be able to tell you their goal in 3 sentences or less. When they reduce it to that degree they can begin to get their arms around it conceptually. This almost invariably leads them to the hook that captures the essence of the story. Sometimes that hook arises from what happened, sometimes it comes from why it matters, and occasionally it can be found in how it is presented. But find it you must, there can be no try here - only do.
Using these three simple questions focuses the advocate, but the only way to make certain that they get it is to then have them craft and present an opening based upon the answers they have just rediscovered.
Of course before you do that you need to model the behavior for them so they see how to do it, but that is fodder for another post.
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.
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.
Opening statements in the Rod Blagojevich corruption trial take place tomorrow. Blagovejich is the flamboyant former governor of Illinois, accused of trying to sell Barack Obama's Senate seat. For the uninitiated, the trial will provide a fascinating look at the seedy underbelly of Illinois government, where politics is a blood sport and influence peddling has been elevated to art form.
Beyond that, the trial should be a useful vehicle for teaching trial advocacy. Because of the high-profile nature of the case, it is likely to receive heavy press coverage, including learned commentary from the punditocracy about the advocacy choices of the attorneys for both sides.
Check out this article from the Chicago breaking news service for a preview of the different styles likely to be on display during opening statements tomorrow.
A quote that stood out to me in the article was from Blagojevich's attorney, Sam Adam, Jr.: "The more you try to say things the way you think people want to hear them, the more you get away from what got you there in the first place." One of the hardest things to teach budding young attorneys is to rely on their own voices, and I don't think I've ever seen the point better phrased by anyone else.
I am convinced that integrating discussion about current cases can be a valuable part of teaching either a trial advocacy or an evidence course. Students thrive on making connections between what they are seeing in the courtroom (or reading about, or watching on television), and what is being taught in the classroom. Personal experience as a student, then a teacher, has taught me how important this connection can be.
I took a criminal trial practice class my third year of law school during the O.J. Simpson trial. Our class was taught by two seasoned criminal defense attorneys, who took full advantage of the teaching opportunity posed by the trial. We spent the first ten or fifteen minutes of each class discussing the case. The insights they provided about strategy, tactics, and decisions of counsel were invaluable, and helped me catch a glimpse of just how complex and difficult trial work can be. Until I took that class, I thought the world of appellate cases and advocacy represented the pinnacle of the lawyer's art; after the class was over, I felt differently, and I made my career choices accordingly.
So-I'll be paying close attention to the Blagojevich case. As an Illinois resident, I'm interested to know whether Blagojevich will join George Ryan in the Illinnois Governors' Wing of the Terre Haute Federal Correctional Institute. As a student of the human condition, I'm looking forward to witnessing a drama of potentially Shakespearean dimensions (after all, we have on trial a man with few inhibitions, who has promised to testify in his own defense, and who would not hesitate to drag the President of the United States down with him). And as a teacher of trial advocacy, I plan to be alert to opportunities to enhance my classroom instruction with a dose of real life.
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