Are you new to trial work? Buy this book. Not new but wondering why you’re not much good? Buy this book. Are you 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 endeavor’ 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, and 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 defense rests; up to 75% after the closings and judge’s instructions; and 25% 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.
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