Joseph Anderson Jr's 'Effective Courtroom Advocacy'

Review of 'Effective Courtroom Advocacy',  Joseph F. Anderson Jr.,  2010, NITA (and through Lexis Nexis), ISBN  978-1-60156-124-4,   to order click.

New to trial work?  Buy this book. Not new but wondering why you're not much good?  Buy this book. Experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.

With the 'who can benefit' issue now out of the way let's have a look at the interwoven 'why' and the 'what'.

This book doesn't just give examples of good advocacy.  Anderson succinctly, clearly and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ' how, when and why to make objections' script as a timeless teaching tool.

Those readers who understand that 'decision maker indoctrination' trumps 'sadistic endeavour' as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial.  The transcript still sings.

Anderson comments that he once heard that, 'the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge's oath'.  He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an 'evidence free zone', substituting assertion for the evidence (rather like those advocates who do bad directs).  But not Anderson.  Here's that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us.  Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid and boring is not the way to win the hearts and minds of decision makers.

For all of us there's a useful two page checklist of 'do's and don'ts' for closing argument.  Put it in your trial reference folder, use it as a tool to bring some objective critique to the closing you'll deliver after lunch or tomorrow morning.

While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests.  The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.

Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery.  Anderson cites the 1993  National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done;  about 15 % when the prosecution/plaintiff rests;  a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions;  with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.

Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully.  There is not much you can do, he says, 'except respectfully and steadfastly hold your ground'.  That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions.  The witness’s advocate, quite properly, stood to object.  The judge cut her off with a ‘Sit down’.  She did.  I felt for the witness, paying out good money for nothing.

Paying out money for this book though is well worthwhile.  It should sit alongside some other texts that have more to say and suggest about questioning techniques.  Anderson’s comments on those matters reflect the orthodoxy of the past.  We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.

So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.

Hugh Selby ©  March  2013.

Using Checklists in Advocacy Teaching and Practice

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In 2010 Atul Gawande, a Boston based surgeon, published his ‘The Checklist Manifesto: How to get things right”  [Henry Holt and Co. LLC, ISBN 978-0-8050-9174-8]. The point of the book is that customised checklists help us all – no matter how experienced and clever – to do the job better.

There’s nothing new about checklists. For lawyers there is much transactional law that lends itself to ‘doing by numbers’, a reality that encourages the profitable use of paralegals.

For advocates too the notion of checklists is also well established. A trial note book is a super checklist, inside of which there are sub checklists and far too much distracting detail. Having sat grudgingly through a number of presentations on the necessity for a trial note book and the need to have it tabbed and colour coded etc. etc. ,  I did not expect to find a book on checklists interesting, let alone a successful change agent for how and what I teach.

Gawande’s insight is the bleeding obvious (with hindsight), namely that a checklist is only as good as its immediate relevance to the user.  Take the weekly shopping list – whether it be the adhoc list of items scribbled on the white board fridge magnet, or that new cell phone app you’ve been playing with that lets you put items against various categories on that shiny, bright little screen.  The former probably works better than the latter unless you can readily change those app categories. Why is this so?  The app categories are generic and are not the best fit for your shopping preferences.  There’s a best fit checklist in your head that reflects both your categories AND where you’ll find them in your supermarket.

For so long as you shop alone and you know what’s missing from your home shelves then your ‘inside the head’ checklist is very efficient.  The problem arises when you share the shopping: your ‘assistant’ is not inside your head, doesn’t share your priorities for filling the missing spaces on the shelves, doesn’t tour the supermarket in the same idiosyncratic way that you do, and probably wants to move along some of those shelf items and stock a few items of which you do not approve.

There are ‘would be’ high flyer advocates who share with some aspirant surgeons the misconception that theirs’ is a solitary craft for genius, overlooking that without continuous teamwork nothing notable is achieved. Developing and sustaining that teamwork is a high order application of sharing the shopping journey. The method is to start with the generic (like the app shopping list) and then tailor that checklist to the needs of the team so that it’s there, being easily and helpfully applied, during the preparation and during the performance.

By the way it’s a misconception to believe that such a checklist cuts off the capacity to be creative.  To the contrary, with everyone knowing what they are doing, and why, there is the opportunity to search for a better way.  And, having found it, the checklist is updated.

As advocacy teachers we can use checklists both for trial preparation and performance sessions. By showing that it works it is more likely (I hope) that our students will then carry over the habit into their practice. My present plan is to create a checklist backbone, to which students (and other teachers) can add such ‘reinforcing’ and finishing detail as meets their changing needs.

Paying false homage to my blog colleague Charlie Rose’s commitment to a rule of three I introduce the substantive part of this article by calling upon the 3A’s ( the advocacy teacher’s response to the 3R’s).  We have adversarial, audiences, and anticipation as the three touchstones of our craft.  I’ve yet to find a way to properly use this insight but astute readers may find a way and share it in the Comments box.

Within our adversarial system we define a contest within the legal elements of each cause of action or charged offence that is before the court. But that’s not the only foundation concept to which the student must pay attention. There is also, and always, identification of audiences and the respective objective needs and subjective wants of each audience. That this is so is readily seen as this article is being written by the hype around the forthcoming trial of a recent head of the IMF who engaged a hotel staffer who entered his New York hotel suite. Whether what then happened was an outrageous abuse or a consensual fling is for a New York jury to decide. The legal teams for both prosecution and defence are doing their darndest to create atmospherics for the audiences that give their side some advantage in the public space that is the media.

That leaves ‘anticipation’. This is a concept with several implications in the advocacy concept.  It is clearly difficult to grasp – the proof of that being the daily performances of too many advocates who clearly don’t have a clue about even one such implication. ‘Anticipation’ requires an advocate to recognise what their competent opponent would do and either prevent it, or minimise the amount of damage that their opponent can do.  The problem is that the less than competent advocate lacks the capacity to discern what a competent advocate would do, no matter for which party they act.

‘Anticipation’ also refers to what the good advocate will set up in each of their audiences: a sense of a case that is well prepared, will be well delivered, and which will be persuasive.  (There is a third aspect of anticipation to which we will turn later.)

The foundation of elements, atmosphere, and anticipation leads into a checklist of ‘required’ evidence. Both sides must engage in this task: one side to make sure they have it, the other side looking for the bit that is missing, or the bits that are there but are, for one reason or another, compromised. Hence the checklist requires the lawyers to look to the sources of evidence and then objectively evaluate the ‘weight’ that each bit bears.  So, early in the piece, there are reasons for advocacy to be taught tethered to an evidence course.  How better to understand the critical place of ‘credibility’ as a basic evidence concept than to see in the course of practising the art of cross-examination that a critical mass of mud on the face of the messenger is so very effective to cast doubt on the strength of his or her relevant and admissible message.

Given the sources and their perceived strengths and weaknesses the advocacy student must then consider the interwoven concepts of, ‘What is the most persuasive order in which to present this evidence?’ and, ‘How do I minimise on direct the target size of my witness who will be cross-examined when I finish?’ It’s at this point that the student is applying the guideline, ‘Start with your best, finish with your second best, and wrap the weak stuff in the middle’.

Following this skeletal approach the student should be able to run ‘trigger’ points from her or his checklist that bring to mind the topics of factual material that need to be drawn out from one or other witness in a predetermined, persuasive story.

With the law and fact content settled, a student advocate needs to pay attention to the presentation aspects of both their and their witness’ performances. For the novice this means that the checklist includes how their anxiety is going to be masked. It may include such detail as, ‘Are my feet and that of my witness facing towards the decision maker?’ ‘ Do I and my witness have a half glass of water handy?’ ‘Are we both able to bring our voice speed down to a good court room speed by syncing our toes with our voice speed, and having a note that has ‘SLOW’ written vertically on the page?’ and, ‘Am I now entering that 3D space with my witness to recreate for the audiences in this court room a past experience of the witness that is being retold by us today?’ That amount of detail is only necessary for the newbie.  The more experienced, where such preparation is automatic, merely writes:  ‘control anx’ to cover for that rare occasion when the automatic deserts them. That’s the beauty of the customised checklist: it’s there when it’s needed.

The checklist may also include a reminder about clothing and artefact such as tattoos and body piercings: doing whatever can be done to keep a prejudice in the audience turned off.

That done there is the checklist point about how and how early to introduce visuals that will entice the audience into a story that they can now ‘see’ as well as listen to.  There’ll be a cross link to that evidence topic of ‘more prejudicial than probative’ to remind the advocate who loves gore that some in their audience max out with a ‘low level violence’ rating.

Slipped repeatedly into this sequence will be the message, “Reassess your position. Should you now reinforce, back up, shift focus, or move forward?” That’s the essence of having our students acquire the inner knowledge that all good advocacy is both reactive and pro-active to the immediate environment.

Making or not making objections to questions or assertions by the opponent is another application of the reactive/proactive approach.  The common objections lend themselves to a checklist.  Introducing that list – for the novice- are two questions: 1. Do I have a good faith basis for this objection? AND 2. Do the tactical benefits (now and for possible appeal) outweigh any tactical downside (such as antagonising a jury)? Once again the ‘objections’ checklist provides a good link with the parallel evidence learning.

By dint of explication and repetition above I hope that it is clear that this article does not endorse generalised checklists of the sort that might be otherwise called templates or precedents.  Sadly, but fortuitously for adept advocates, there are plenty of situations where the witnesses have used such generics.  Sometimes the advocate just knows that the witness will have followed, for good or ill (and usually with their assessment brain in the ‘off’ position) some inappropriate checklist. It is good to anticipate such a witness because worse than no checklist is the slavish following of the wrong one. The cross examination of such a witness must eschew belittling but leave the other audiences in no doubt as to the lack of witness credibility.

Our students need to know that a checklist is a map for macro items and a reminder of those things that are important to the student at and around the time that the checklist is prepared.  Just as effective CV’s change with time so should a useful checklist.

A useful checklist uses topics (just like the agenda for witness examination).  It is short (like an opening and a closing). It is easy to find.  It will do either or both of: ‘Do this and confirm you have done it’, or, ‘Read this and do it’.  It does not include explanation because that is a given before the checklist is prepared. Just as teacher and student find it useful in basic training, so later that student, now an advocate, can make it useful for advocate, witnesses and anyone else on the team.

I can see an advocate walking up the stairs to the court house. The mobile phone is open, they have closed out the non work apps and they are looking at their pre-court checklist. There are many things on their mind.  Fortunately the last item is, ‘turn this thing OFF’.

Hugh Selby ©  June, 2011.

A new way to teach motions and objections

I have been teaching an advanced criminal trial advocacy group this semester and I’ve taken a different approach with teaching objections and motions that I wanted to share with you.  I must disclose up front that I discovered how well it worked by accident, but I am sufficiently impressed by it that I intend to use it again in the future. 

Most of us have struggled with how to effectively teach objections and motions.  We have the time to teach them in trial advocacy courses, but it often becomes the thing we gloss over in favor of more fundamental skills.  While I routinely teach students the performance aspects of objecting or arguing motions I have personally found it more difficult to teach the art of effectively objecting and making motions.  It seems to have a lot to do with connecting so many different strands into a cohesive whole.

 

In this particular class one of my most important goals was to show my students the important connection between objections, motions and presenting the most persuasive case possible.  I wanted them to be able to adjust on the fly during an actual trial.  They needed to be able to shape the case through the use of the law, sometime in the actual moment when it came up.  So what to do?

I started the class by assigning a case problem.  I had all of the students analyze the case, using the techniques that I normally teach.  I am sure that many of you do the same thing. I told them to:

·         Develop timelines

o   For the overall case

o   For individual witnesses

·         Chronologies

·         Identify the law

·         Identify the facts

·         Apply the law and the facts together

·         Choose a theme

·         Think about potential motions and objections

I told them they should analyze the case twice – once as the defense and once as the prosecution and then compare them.

During our next class we talked through their case analysis.  I let the students drive the discussion, going wherever they wanted it to go.  I would occasionally ask questions, but I left the direction of what to talk about up to them.  I then had them prepare an opening statement and closing argument for both sides.  The next class they delivered those statements and I critiqued them.  I assigned each student to represent either one side or the other and told them that during the next class they were to cross examine all of the witnesses they expected to be called by opposing counsel.  It was during that class session that things got interesting.

The class period began like most cross examination exercises do, but as I began to critique the crosses the students started asking excellent questions that were tied to different branches of case analysis.  Some questions addressed fact analysis, others addressed what had to be proved, and quite few were looking into which moral theme might create the most persuasive presentation.  Suddenly our simple cross examination class was transformed into a collaborative process where the students were using the elements that we had learned during case analysis in a real world setting.

Sensing that something different was going on I let it ride, suddenly we were using cross examination to verify our case analysis.  As we continued down that path we began to identify objections to evidence and motions we needed to research and potentially file. 

I came away from class thinking that I have been teaching objections and motions in the wrong way.  I am going to look at using advocacy presentation skills to drive case analysis with the goal of further developing appropriate objections and potential motions as they relate to case analysis and persuasive presentations.  You might think of it as imbedded case analysis – we’ll see how it goes.

Charlie

Saying Goodbye to the All-Object Rule

One of the hallowed traditions of advocacy teaching is the "all object" rule, in which all class members are encouraged to object during another student's advocacy performance. The idea is that with everyone paying attention and objecting, no evidentiary errors will go unnoticed during an advocacy performance. The rule is honored more in the breach than the observance. In my experience, it is a rare occasion indeed when someone besides the instructor objects during class.

I believe the "all object" rule breaks down because of human nature. When everyone is responsible, no one takes responsibility. Some students don't object because they think someone else will do it. Others don't object, even if they think they should, because they don't want to stand out from the crowd. (There are, of course, students who don't object because they don't know any better, but that is a different issue altogether.)

At a recent NITA course, I learned from my fellow faculty members that many others have made similar observations and have long since abandoned the practice. In one session, we assigned pairs of opposing counsel to be responsible for objections. This worked well, although I did note in a couple of cases that a dominant advocate would take over the task and shut out a less assertive partner.

I think it's high time for the rule to disappear. I got rid of it in my summer advocacy course this year. Instead, as I discussed in an earlier post, I assigned students to play the role of opposing counsel and to be responsible for objections. I graded them on their performance, and part of my critique points addressed the validity and timing of the objections they made, as well as the objections they should have made but did not.

In our final trials, this decision seems to have been validated. This particular group of students did a better job of objecting and responding to objections than I've seen in past classes. I intend to use the same assignment system in my next trial advocacy class to see whether the positive results continue.