If Justice is for Sale, Does Advocacy Even Matter?

I had an interesting telephone conversation with my good friend Joshua Karton a couple of days ago. He wanted to know whether I thought online advocacy classes would push budding advocates further away from the human connection in the courtroom that is such a vital component of the trial advocate's art. He spoke of the relentless forces that already hinder access to courtrooms and wondered whether technology is becoming yet another barrier to justice for the poor and the powerless.

Last summer, I taught an online advocacy course. I intend to write more about that experience in an upcoming blog post. In the meantime, I must admit that my conversation with Joshua caused me to take a mental step back and try to see the big picture of the adversary trial system and identify the forces that might interfere with the search for truth and justice. 

This afternoon, I read an article in Politico Magazine online that gave me pause. In the article, I Was Alabama's Top Judge. I'm Ashamed by What I Had to Do to Get There: How Money is Ruining America's Courts. Sue Bell Cobb, a former Chief Justice of the Alabama Supreme Court writes about the corrupting influence of campaign donations on the justice system. She asks a provocative question: "How do we convince Americans that justice isn't for sale--when in 39 states, it is?"

Perception and Persuasion: Musings on How the First Affects the Second

One of my research assistants dropped by my office this morning so I could sign her time sheet. We spent a few minutes discussing work and life. Knowing that I am not always aware of current cyberspace events that are common knowledge to Millennials, she recommended that I take a couple of minutes and look up the online controversy about the white and gold dress. A quick Google search took me to this New York Times story entitled Is That Dress White and Gold or Blue and Black?

For those of you who were, like me, heretofore unaware of the controversy, it involves the impact of perception on determining the color of a dress in a photograph. Some people believe it is white and gold in dark shadow, and others believe it is blue and black washed out in bright light.

The Holy Grail of Legal Education - Competition Teams and Legal Education

Dear Friends:

Competition teams, and the structure that we impose to train them, contain many of the prescriptions for what ails legal education at many universities today. Why? Because if you look behind the curtain of any truly successful advocacy program what you find is a commitment to combining understanding and application of the law for the benefit of a client or cause, while simultaneously teaching professionalism before the court. This is the Holy Grail of Legal Education in today's world, and we have been quietly and effectively doing exactly that for years. At some schools it has been a subversive movement, others, like mine, have embraced it as a core value. All of us need to move more in that direction.

Sometimes faculty fear this core commitment to teaching substantive law practically. I have found that some of the best coaches you could ask for began as professors who were afraid that "coaching" would somehow dilute the quality of the law they were teaching. To a person they have always come back to me afterwards and shared how amazed they were to learn that coaching actually becomes an upper level class in the substantive law contained within the problem. An upper level class that also requires a command of the relevant procedural rules, ethical rules, and persuasion theory. This is what our students must master to become practicing attorneys and it is what many law schools are currently searching for as they attempt to create "capstone" and "practicum" courses. We, as a profession, could take the lessons learned from coaching teams and apply them to curriculum development. Imagine what we might produce.

Quality competition programs have gone far beyond the false dichotomy of skills v. doctrine and embraced the reality of practice - both must be understood and mastered, in tandem, to successfully become a lawyer.

If you talk to any of the advocacy program directors, who, year in and year out, are recognized for their excellence you will quickly find that they spend more time teaching substantive law than they ever do teaching the skill of presentation. In fact, the manner of presentation is driven, in whole or in part, by the understanding of what the substantive and procedural law will allow. So how might you increase the quality of your programs? The answer lies in teamwork.

Identify subject matter experts on your faculty. Team them up with persuasion experts (usually trial lawyers or appellate lawyers who are in the fray) and provide a structure for them to work together to teach their young lawyers how to try the case, make the argument, negotiate the deal. The secret sauce is in the proportional mixing of the substantive law, procedural rules, and persuasion techniques. When done right you see phenomenal growth on the part of the student, a great deal of personal satisfaction on the part of the subject matter expert who helped, and a better result at the competition. You also create a friend of your program when you need one.

There is, of course, nothing particularly exciting or novel about this approach. You can find it on any good sports team. You have coaches by position, with specific expertise based upon study and experience. The same thing occurs in the arts. Truthfully it is what makes us human - the desire to learn and to teach.

I would love to hear your ideas about how we might tap into that very human need to share as we work to create the best 21st century lawyers, and law school, possible.

All the best,

Charlie

Universal Nature of Advocacy Teaching

Dear Friends:

I am blogging to you from the desk of an apartment in Montmarte, Paris, where my wife and I are spending a few days recovering from a visit to Glasgow and Oxford where I was teaching advocacy in a new LLM program for Strathclyde University. The lights from the Moulin Rouge windmill can just be seen from the window of the sitting room of our apartment (we got it through housetrip.com which I heartily recommend). Since my feet are tired from seeing the Arc de Triumph, Eiffel Tower, and Notre Dame today (along with a LONG walk along the Seine) I am resting my feet and thinking about my recent visit to Glasgow. I am grateful to be in Paris with my wife, the last time was with friends from the service, Tyler Harder and Mike Stahlman, and while their company was great, this time has been much, much better!

Like most of you I have taught in many different countries, but I am always moved when I realize that the skills we teach are truly universal. When you get a chance to teach persuasion in a different country, with a different culture, it is a blessing. Suddenly you are divorced from the cultural shorthand that you normally use to transfer an idea to a student. You are forced to rely upon your ability to clearly define a moment in the performance, and then translate that moment into a teaching opportunity. In a way you are vulnerable when that happens, in much the same way as the student is vulnerable every time they perform in front of you. That vulnerability is a gift. It opens doors to communication and gives you a fresh perspective on things.

I got to experience that vulnerability last week, and am grateful for it. It is amazing that so many of the things that challenge us in advocacy remain the same, regardless of the language, court system, or the like. I saw finger rubbing, ring twirling, add on words, lack of eye contact, all of the things that you see when you teach. I also saw a fierce desire to learn coupled with a belief that practical education in the art of advocacy is a higher level of education and one that is to be sought out at each and every opportunity. I also was reminded of how a deep connection to our cultural roots can infuse our advocacy with humor and passion. These lawyers, from all over Europe and even Cambodia, see advocacy training as something that is crucial to the quality of their practice, and necessary to their individual growth. Seeing seasoned professionals so focused on skills education was a moving experience and I am grateful to Dame Elish Angiolini, Principal of St. Hugh's College at Oxford, for the opportunity. I cannot wait to return next year.

It made me think about the joy we get from teaching, from coaching, and from writing. We are blessed to do this for a living, and from the glow of the windmill I just wanted to share that thought with you. It has been a rough year or two in legal education, with a few more rough years to follow. We are fortunate to have the compass of skills to guide us through these troubled times. Isn't it nice that everyone else wants to use it too?

See you at EATS in May!

All the best,

Charlie

Storytelling - Making the World Make Sense

Dear Friends:

I have been blogging the last few days about storytelling, how it works from a biological perspective and the ways in which we might be able to use the unique storytelling nature of humanity to make ourselves better advocates.  I wanted to shift focus slightly in this post, and build upon the idea of narrative and how it can relate to better advocacy.  

Humanity spends each waking moment in a search for context.  We need the world to make sense.  There must be a reason for the things that do, and do not, happen to us, and an explanation that places us firmly in the world in a fashion that allows us to function.  The story of our life is the individual narrative that makes sense of the nonsensical. Making sense of things that are presented in a piece meal fashion is the charge facing every jury member.  They will begin, from the moment they are selected for jury duty, to create a narrative of their life as a juror.  Every lawyer, every witness, every party, is a character in the narrative of the jury member’s life at this point.  They will use this same process to make sense of the trial.  If this is true we should use it to tell a persuasive and believable story to the jury.

What makes for a persuasive and believable narrative?  First and foremost it must make a personal connection with the person that is the subject of the story, and with those with whom it is shared.  We can define a personal connection as one that clarifies the issues faced by the individual, simplifies the great questions in that person’s life during the story, and then provides information that nourishes both the storyteller and those who are experiencing the tale, hopefully with information that can be shared and used by others when they go through similar times.  If you think about it for a moment it is relatively simple to place the story of the parties in a civil action, or of the victim and defendant in a criminal case, into just this sort of narrative.  The question is how to do it effectively?

If you look at human nature, most of us are comprised of competing thought processes that work in very different ways and from very different perspectives.  Freud spoke of the id, the ego, and the superego.  People of faith speak in terms of the natural and the supernatural, humanists deal with the known, and attempt to explain the unknown.  Each of them is relying upon their logical reasoning, the ability to deal in abstract concepts, and the emotional responses experienced as they walk through the thicket of logic in a world filled with shadows that cannot ever truly be known.  This need for focus is paramount, without focus we cannot hope to have context, and it is the context that makes it all work for us, both individually and collectively.  It is why certain stories are so incredibly powerful, so focused on what it means to human.  You know them when you read them, you weep when you see them, and they make the cup of life both rich and bitter.  They also have certain shared components that can be identified and used by advocates as we tell our client’s story.  Simply put, the stories need to ‘stick’ with the listener.

Stories that stick with the listener are deceptively simple. This doesn’t mean that they are not complex, or unsophisticated, but the delivery of the message is simplistic so that it can enter the consciousness of the listener.  Think of it this way, when you are trying to tell someone four different things at once you wind up not telling them anything.  Simplicity can, in some sense, be equated to focus.  Simplicity makes the listener receptive to the story that follows.  This is a lesson that applies to every piece of the trial.

Once you have hooked the listener with the focused simplicity of your subject, you surprise them with an issue or event that is unexpected.  The unexpected creates contrast, and contrast draws focus and attention.  In the best stories the unexpected becomes the turning point that takes the subject of the story down a path they would have otherwise never walked.  Suddenly we need to see what happens to them - we want to know what comes next.

Once the listener commits to engaging, the storyteller needs to use concrete terms and descriptions that focus different parts of the human brain on experiencing the story.  Concrete words create physical responses within the brain and engage the narrative of the listener - committing them to your version of events.  The use of these sorts of words and the engagement of the listener at a narrative and biological level creates credibility for the storyteller. Credibility, once established, brings the listener along with the storyteller through those moments in the story that require faith and belief in something that is not tangibly present.

To accomplish all of these goals the storyteller must enlist the audiences’ emotions.  Certain situations call to our emotional reasoning.  Some are stereotypically human - puppies, little children, the sick and injured.  Others issues may not appear to have an emotional component on the surface, but good storytelling ( and case preparation) can identify the humanity beneath the issue - placing it on display to engage the emotions of the audience.  You can use the nemonic SUCCESS to remember these points.

Simplicity

Unexpectedness

Concreteness

Credibility

Emotions

Successful

Storytelling

The genus of these ideas come from two excellent books that talk about similarities between presentations (stories) that resonate with us.  If you find this topic interesting I would recommend that you consider reading “Made to Stick” by Chip & Dan Heath, as well as “Presentation Zen: Simple Ideas on Presentation Design and Delivery” by Garr Reynolds.  Both of these books look at presentation and storytelling from a different viewpoint than we might take as attorneys, but the suggestions they make have the potential to greatly increase our ability to successfully tell the story of our clients. 

Finally, and most importantly,

Happy New Year’s to You and Yours.

All the best,

Charlie

The Eight Intangibles of Trial Advocacy

Wes Porter at Golden Gate University School of Law, wporter@ggu.edu, and www.GGUligitation.com offers the following post in memory of a great teacher of advocacy and pioneer in experiential learning - Bernie Segal.  Enjoy!

Eight Intangibles of Trial Advocacy

Golden Gate University School of Law Professor Bernard “Bernie” Segal passed away August 12^th, the Friday before classes began in his 40^th year of teaching.  Many of us spend significant time teaching the fundamentals of trial advocacy to new law students.  We strive to have as many students as possible absorb these fundamentals as part of their skills training during law school.  My friend and mentor Professor Segal had a knack for identifying and demonstrating for students the intangibles of trial work.  He had a way of allowing students to envision their path - from where they were to where they could be as an advocate. 

There are aspects of trial advocacy, like anything, that separate the exceptional from the competent.  While difficult to isolate, understanding the intangibles allows a trial advocate to better understand his or her own development – and their own path to excellence.  We plan to name our Litigation Center after Bernie and his legacy.  But, also in his honor, we will continue to introduce advocacy students to the intangibles, as well as the fundamentals, of trial advocacy.  My eight intangibles of trial advocacy are as follows:

1.     Connecting with (not talking at) jurors.

Great trial attorneys don’t deliver speeches.  We aim to persuade juries to act in our favor.  To persuade jurors to act during deliberations, we must connect with them on some level during trial.  We must have a passion for our side and the central issues of our case.  Only then can the jury connect with our theory and presentation – and with us.  They will go with you and your side if they connect with the passion you present for your side.  That doesn’t happen with contrived speeches – it only happens with appealing to the jury’s genuine emotions.

2.     Crafting an argument . . . from an inference  . . . from a favorable fact.

Effective trial attorneys identify and emphasize favorable facts.  From these facts, we create all plausible and workable inferences.  And, from these facts and inferences, we craft arguments – the kind of persuasive and impassioned arguments that make the difference in jury trials.  Take that important fact at trial and develop the reasonable inferences from that fact – and then craft the best argument possible (as if you have no other facts in your favor).  Everyone can read the facts and recite them back to a jury like a speech – the effective trial advocate does something with each fact that changes the complexion of the case.

3.     Maintaining focus on the case theory and presentation (No rabbit holes).

From the “easier-said-than-done” file, dynamic trial attorneys keep their eye on the prize (their desired outcome realized from their case theory).  They do NOT take long, confusing deviations from their case during trial.  Each question and argument should connect and contribute your case theory and presentation.  Avoid chasing unimportant topics down those rabbit holes during trial.

4.     Reacting to the opponent’s theory of the case throughout trial.

Successful trial attorneys react to trial.  The questions we ask and the arguments we make should directly reflect, not only our case theory, but the theory we confront from our opponent.  Listen to your opponent’s questions and understand their theory of the case (and all of the intricacies within it).  How your opponent deals with an unfavorable fact may present an argument in closing about their approach to the whole case.  We must listen, understand, and REACT to our opponent throughout trial. 

5.     Presenting a closing argument as a reflection of the trial.

Persuasive trial attorneys present and explain in closing the evidence adduced at this trial.  The jury can appreciate the difference between a pre-written speech about the case and a presentation related to the subtleties of the trial they just sat through.  Discuss the specific testimony, explain the evidence presented, offer your assessments of witness credibility, and reference that which you could not have planned for at trial.  

6.     Listening to witnesses.

This one is simple.  Ordinary attorneys on trial ask their next question.  Exceptional trial attorneys listen to the witness and then ask a next question.  On direct, our next question must flow from the witness’ previous answer.  On cross, we plan for a yes (or no) answer, but then listen and react when we get any other answer.  Why read a prescribed, verbal questionnaire to the witness?  Instead, listen to the witness and confidently host a conversation.

7.     Objecting and responding to objections professionally and confidently

Seasoned trial attorneys give NO indication that the court’s evidentiary decisions affect them on trial.  Do NOT be the trial attorney that makes a big deal about an objection, response, or judicial ruling; the jury will assess the situation based upon our reaction and demeanor at trial.  Deftly rephrase questions, return to central messages after an objection and ruling, and maintain our poker face.  We want the jury to see a confident, poised, and professional advocate move on undeterred in his or her case presentation.          

8.     Explaining how the jury successfully will carry out their duty

Jurors serve once or twice in a lifetime; trial attorneys (even new ones) do this for a living.  Jurors, like any person engaged in an activity unfamiliar to them, want someone to explain to them how to fulfill their duty.  If we are professional, ethical, and candid with the jury on all issues, then they will go with us on closer calls during their deliberations.   The jury wants to do the right thing and they are looking for help – so be the one in the courtroom they trust to help them.