The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Archives: June 2013

Law School Part 2: Advocacy Appreciation, Not Advocacy Skill, is the Game to Watch

Posted On By

“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we’ve been waiting for. We are the change that we seek.”
― Barack Obama

Advocacy appreciation, not advocacy skill, is a foundation step in 21st century legal education.  But how quickly can today’s realities about what current students need to become good lawyers replace the assumptions of the last century?  That is the question.

This article proposes that ‘advocacy appreciation’ ought to be a core element in first year law school programs, and that our trial and appellate advocacy programs should be packaged as part of a later year litigation stream while those students with a more transactional bent take other specialist streams.

For the moment those students with a keen interest in litigation take Trial Advocacy, an advanced course if it’s offered, and try out for one of the few places on the competition team.  Everyone else—and that means all those student colleagues who are looking to do mergers and acquisitions of giant corporations; intellectual property over  famine resistant, high energy seeds, the post Facebook bandwagon, and the cancer cure for all; environmental law that will reverse climate change; human rights in troubled times with Guantanamo still not closed; and etc.—assumes that they live in a world free of litigation, despite the evidence on every page of their theory and case books that litigation is the test bed of nearly everything they learn.

But if students are divided between those who stand in courtrooms and those who sit in offices, they are united by the following:  Law school costs a heap of money.  What will be the return on the investment upon graduation and in that decade beyond when they aspire to live the dream?

Of course there are some indicators as to the job opportunities for new lawyers that are well known to the American profession, but being an outsider I resorted to Googling, and limited my inquiries to the State of Florida ( as that is where the annual ‘Educating Advocacy Teachers’ Conference is held). The available information, mentioned below, is relevant but far from comprehensive.

State Court Caseload Statistics (http://www.courtstatistics.org/Other-Pages/StateCourtCaseloadStatistics.aspx )  reports that the tort cases trend in Florida general jurisdiction courts for the ten years from 2001 to 2010 peaked in 2002 and has declined steadily ever since, to the extent of  20% ( from 50,925, down to 39,709).  As I read the circuit civil dispositions for fiscal year 2009-2010 (see http://www.flcourts.org/gen_public/stats/ReferenceGuide09-10/Ch4_Accessible.pdf ) some 42.5% were disposed of by no trial, which I take to mean were settled without substantive hearing. Jury trials took up only 0.2%, and bench trials only 0.1%. The other categories in the pie graph were not readily intelligible to a foreign lawyer, but don’t alter the minuscule share of trial advocacy across the range of civil suits.

The felony cases trend in the same Florida courts over that same 2001 to 2010 period leaped upward, almost doubling between 2001 and 2007 before settling back to a mere 1.5 times  (State Court Caseload Statistics, ibid).

But how are those felony cases being dealt with?  Is the rising number of felony matters bringing a sustained surge in jury trials?  We can get some data here: http://www.flcourts.org/gen_public/stats/reference_guide09_10.shtml

  1. Circuit court criminal statistics reveals that the dispositions spread was as follows: property crime at 53%, drugs at 29%, violent crime at 2%, capital murder at 0.1%, and other crime against persons 17%  [all rounded %].
  2. 97.8% of cases are disposed of without trial, a mere 2.1 % have a jury, and 0.1 % have a bench trial.  There’s a conviction rate of 85%. Clearly there’s a big demand for being good at plea bargaining and at sentencing hearings.

The skills needed to satisfy these statistics are an ability to quantify damages, to understand sentencing trends, to negotiate outcomes—be those civil damages or plea bargains—and so keep courtroom appearances for putting ‘the icing on the cake that has been cooked and cooled’.

Those figures don’t suggest a law market demand for an increasing number of trial lawyers, though we need to know more about trial lawyer retirements, trends in trial lawyer income, etc. to get adequate data from which to offer career advice to any law student.

Some of that information has come from the Florida Bar who kindly provided recent membership figures. From just under 80,000 in 2005 they increased by 20% in just eight years to almost 96,000 in April, 2013.

I was hoping to give you some breakdown into fields of practice, and especially some data on how many Florida lawyers held themselves out as litigation specialists.  Sadly, the Florida Bar doesn’t keep any data on its members’ areas of practice.

Figures from Australia, another common law country that has a lot in common with the USA, show that around 10% of lawyers there specialize in litigation. Would the Florida litigation specialists be around 10% of the Florida Bar? Would they be more? Less?

The point about that 10%, or 15% (if you’d like to be especially generous) is that being a skilled trial or appellate advocate is, and will remain, a minority interest.  Some 85% of our lawyer colleagues would like to avoid litigation, both as a career choice and in their personal lives.

There are some straightforward implications of these percentages and trends for the US law education market where, I am told, enrollments have dipped but influential voices are calling for law schools to be more pro-active in making their graduates ‘market ready’.

‘Market ready’ shifts the cost of transforming a book-learned potential lawyer into an income earning, profit enhancing employee lawyer from the employer and back to the law school and its fee payers.

‘Market ready’ means that law graduates have had experience (probably in simulations) in interviewing, managing files, conducting high rates of simple return legal transactions, writing letters to clients and other lawyers that don’t need to be rewritten ab initio by their supervisor, being able to appear in straightforward interlocutory matters, knowing and dealing with the tax implications that arise across a range of legal transactions, etc.

‘Market ready’ does not reach into acquiring trial advocacy or appellate advocacy skills.  That is a step too far.

When law schools are being assailed for costing too much, the pragmatic Law School Dean will see no benefit to providing training in a skill that seems, at first glance, to be of such little worth or interest to the great majority of the student body.

Our challenge, as advocacy teachers and trial lawyers, is to persuade our law-teaching colleagues that advocacy appreciation is a foundational element of a good legal education, and that it can be provided with quality at little cost.   That is an immediate aim.  Looking some years hence we should be promoting ‘streaming’ within law school programs so that those interested in advocacy can gain workmanlike skills before graduation.

Imagine that we are taking part in the following conversation, as the person giving answers.  The questions are coming from our academic colleagues who are joined by those who control the purse strings.

The answers are incomplete. There is more to be said and your ‘more’ is the point of publishing this article.

Q:  Why should there be any attention paid to trial advocacy during law school?

Us:  Law students (and a number of law academics, too) need to understand that facts, with their chameleon-like nature, are vital to the development of legal principles—both statute and judge-made.  They also need to grasp that it’s the skill of trial advocacy—born of talent and developed by experience and informed critique—that gives facts their particular hue in the atmosphere of courtrooms.  That atmosphere brings the outside inside— a truth well known to anyone who has a run a trial which is hot news.

Much law school teaching is based upon appellate decisions so that the facts are a given.  This leads so many law students to dismiss fact finding as, in some ill-defined way, inferior to argument about legal principles.  That prejudice carries over into practice, so that dealing inadequately with the facts when advising or drafting transactions then becomes the cause of later litigation.

Q: What aspects of trial advocacy, then, do all today’s law students need to grasp?

Us: Trial advocacy is a performance art, just as acting, dancing, playing a musical instrument, or high level sports playing are.  Any lawyer should be able to recognize a good courtroom trial or appellate advocate, using objective skills to recommend an advocate to a client, not being beholden to media misinformation to sort out the truly skilled from the self-preening.

Tomorrow’s transactional lawyers, who are today’s law students, need an appreciation of the following advocacy skills:

  • The requirements of a comprehensive case analysis, including the legal elements of the claim or charge, the burden and level of proof, apposite particulars of the claim or charge, the strengths and limitations of the available evidence as assessed by each and all of: the substantive legal requirements, evidence law, credibility of the messengers, and the likely atmospherics at a trial;
  • The capacity to assess risk and hence to negotiate civil settlements or plea bargaining, and to be effective at sentencing hearings;
  • Communication effectiveness with a mix of audiences (including lay or judicial fact finders, clients, witnesses, opponent, media, etc.) not only in opening and closing but also in questioning;
  • Dramatic content in direct; and,
  • Successful indoctrination of the decision makers during cross-examination.

Q: What are the teaching and learning methods needed to achieve those appreciation skills?

Us: We must practice what we preach: clear, as short as possible, full of interest, and memorable. So take a short fact scenario and an everyday law issue and work with that scenario and those legal issues to explain and demonstrate those skills. Have some students attempt them, constructively critique those attempts, and show them what talent and experience can do with that same material.

Because many classes do not have access to good advocacy teachers we—The NITA community—must share our knowledge and ours skills. Just as textbooks made the task of ‘face to face’ teaching easier, so too You Tube, iTunes, and  emerging technology allows us to ensure that quality teaching and learning opportunities are readily available to students anywhere, anytime. We can use such technology to pre-package a step-by-step approach to case analysis, direct and cross, and submissions.

Some such material is already freely available: see, for example, the Stetson Law School’s ARC, and also the YouTube materials of Wes Porter, Charlie Rose, and Hugh Selby. With more experience we will do so much better.

But don’t limit the experience to the classroom.  Equip the students with checklists that reflect their learning and send them out to observe real court cases in their community.  Make them a part of that informed voice that demands better quality advocates and gives life to the notion that our adversarial system is a truly accountable system.

Q:  When, in their law program journey, should law students have this experience?

Us: Surely this is an essential component of the introduction to legal studies, that time when they are introduced to the whys and hows of legal research, legal writing, the doctrine of precedent, statutory interpretation, etc.

But that week or so in an early one-semester course should not be the be all and end all.  Just as some brave academic teachers offer moots, so too should there be opportunities for those with a passion for advocacy to develop trial skills in substantive subjects such as torts, contract, civil rights, and criminal law.  “Got you,” think the purists. “These students haven’t studied evidence or procedure and therefore they can’t develop any trial skills.”  Wrong.  Giving students the chance to fashion questions that lay and build upon a foundation is a good grounding for the later study of rules of relevance and admissibility in the evidence course.

Q:  What, then, is the future of trial and appellate advocacy programs?

Us: Practice and procedure and evidence courses do not belong in the ‘required’ subjects bundle of a law program.  For the majority of practicing lawyers these subjects are pointless. These subjects belong as electives in a litigation stream where they can be tethered to intensive advocacy teaching and learning, covering the conceptual, drafting, questioning, and argument skills that the trial and appellate lawyer needs. Thus trial advocacy and appellate advocacy programs become part of rounded preparation for an advocacy career.

There should be other streams which reflect the realities of the present and short-term future legal market. Those streams should reflect ‘evidence-based’ assessments of what lawyers do in the 21st century, not what most lawyers allegedly did in the early 20th.  A profound change in the thinking about the  ‘needs of a 2015 law curriculum’ is well overdue.

That is not to say that a study of proof is not necessary for any lawyer.  As an ‘evidence-based’ profession we all need an understanding of how to scope the legal and factual elements of a problem, how to decide what is relevant, and how to approach what significance or weight to give the facts we have.  That, however, is not the same as arguing about hearsay exceptions and matters of credit within evidentiary concepts developed for trials (which are, after all, an end game that most people wish to avoid). A new course that combines aspects of logic, evidence, and statistical method is what is needed.  That is a task for another day.

Today’s task, as advocacy teachers for tomorrow’s lawyers, is to heed the President.

Written by Hugh Selby © who, along with his NITA friends Chris Behan and Charlie Rose, runs www.advocacyteaching.blogspot.com, a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school.  He is based at the Australian National University. hugh.selby@anu.edu.au.

Creating and Selling E-Books: What to Consider

Posted On By

E-books continue to be a hot topic in publishing and, although e-books have been around for several years, many legal publishers are just starting to enter the e-book world. This article provides a few key considerations when determining whether or not to create and sell e-books.

How will you make your e-book—will you create it in-house or outsource the work?

You may think that the do-it-yourself approach is the best way to go. However, before choosing that option, it is advisable to think about the time and resources this will take. You will need staff with the time and skills to handle both conversion and distribution of the e-book. If your organization does not have the time or resources available, outsourcing is an excellent option. There are many e-book conversion companies available; it’s important to obtain quotes and samples of their work before deciding on one.

Once you have your e-book, how do you price it?

When setting an e-book price, note that professional and scholarly publishing trends show that e-books are being priced the same or close to the physical list price.

Where will you sell your e-book?

Amazon, iTunes, and Barnes & Noble are some of the biggest e-retailers. However, they do take a cut of the sales. If you have the infrastructure, using your organization’s website would be an ideal option to sell e-books.

How do you protect your e-book?

DRM, or Digital Rights Management, can be applied to e-book files and is intended to prevent customers from copying the book. However, a simple Google search will reveal that DRM can be easily removed, making protection difficult.

What titles do you convert to e-book?

You might want to convert every title in your catalog to an e-book but be conscious of the material and make your decisions based on what is appropriate for the content. For obvious reasons, workbooks and forms will not be very usable in an e-book format.

What can you add to your e-book?

Enhanced content is a big trend in e-books at the moment. Enhanced content includes video, audio, or anything that adds that little “something extra” to the text. When considering enhanced content, ensure that you research the technology options and limitations before making any investment or decisions.

Helpful e-book information and resources can be found on the following websites:
• Digital Book World: www.digitalbookworld.com
• Pigs, Gourds and Wikis: http://www.pigsgourdsandwikis. com/
• Working Press: http://workingpress.org/resources/

Also check the following LinkedIn groups:
• Ebooks, Ebook Readers, Digital Books and Digital Content Publishing
• eBook Technologies

Written by NITA staff member Michelle Windsor

 

Best Advocacy Fix: Avoid Over-Elaborate Language in Direct Examination

Posted On By

Lawyers learn fancy vocabulary in law school.  Our tendency toward windy speech is reinforced by much of the boilerplate language used in pleadings and legal instruments, which owe more to syntax from a bygone era than today’s speaking style.  That lawyerly preference for what my grandfather called “using a six-bit word when a two-bit word would do” might be only mildly annoying in most settings.  But in the courtroom, it can damage an advocate’s credibility with jurors who appreciate plainer speech.  This is especially true the longer a trial goes on.

The trial lawyer’s use of over-elaborate language can be made worse by witnesses that do the same.  Expert witnesses have their own special vocabulary, as do other professional witnesses such as police officers.  When is the last time one of us has heard an officer testify that he “got out of my car and chased the guy into a store,” as opposed to “dismounted my patrol vehicle and pursued the perpetrator into a retail establishment?”  If the lawyer questioning the officer uses the same word choices in her questioning, the examination will soon sound like an old episode from Dragnet. There’s no way you can get that expert or police officer to change the way she talks—don’t even try.  But you can avoid making it worse, and gain credibility with your jury, by using everyday speech and not mirroring the witness’s reliance on jargon.

From the outset with all witnesses, get in the habit of choosing the simplest ways you can think of to phrase questions.  Examples are….

Instead of this… … say this
Where do you reside? Where do you live?
What is your occupation? What do you do for a living?
Describe your educational background. Tell us where you went to school.
I direct your attention to the 5th of May of last year… I want to ask you about May 5th, last year…
What do you recall about those events? What do you remember about what happened?
What is your marital status? Are you married? (Yes, I know in some jurisdictions this may be a leading question, but who cares?)
What was the location of your interrogation of the defendant?? Where were you when you questioned Mr. Bundy?
Dr. Kildare, what protocols did you administer on the questioned documents? Dr. Kildare, what tests did you perform on the papers the police sent you?
And so on….

Note that using simpler words and sentences doesn’t necessarily mean shorter words and sentences.  Sometimes the more common expression is longer than its more pretentious alternative.  It’s not the number of words or letters that matter; it’s the quality of the communication.

Also, don’t mistake this note as advising a trial lawyer to present himself in an artificially folksy way or to dumb himself down to what he thinks the jury’s level of intelligence is.  Any experienced advocate will tell you 1) never confuse a juror’s (or anyone else’s for that matter) education, manner of speaking, or station in life with her intelligence and insight, and 2) never try to pretend to a jury that you’re anyone other than who you are.  All I’m advising is to use the same words and phrases you use in your everyday conversations in your conversations with witnesses.  When you first meet your spouse or significant other after work for drinks, you probably ask, “How was your day?”  I doubt if you say, “I direct your attention to today between the hours of 8:00 a.m. and 5:00 p.m.; what, if anything, significant occurred during that period?”  Your courtroom conversations with witnesses shouldn’t be much different.

In closing, I’d like to illustrate my point with a true event that happened in an Air Force courtroom.  The prosecutor had not been to NITA training and compounded his over-reliance on fancy words with a very rapid delivery.  He called a witness, asked the following question, and got the following answer:

                Q:  Are you a resident of Panama City, Florida?

                A:  Yeah, I’ve been arrested in Panama City.

I don’t think that would have happened if he’d asked, “Where do you live?”

Written by guest blogger:
Tom Becker
Academic Director
The Judge Advocate General’s School
United States Air Force

Law School Part 1: Advice From a Dean on How to Prepare for the Bar Exam.

Posted On By

The most important advice that I could give prospective bar takers is to take time off from their regular job to study if at all possible. A lot of bar preparation is just putting in the work to learn the material and learn and practice the strategies.

I almost failed to follow this advice.  At the time I was getting ready to take the bar exam, I was working for a large firm as a litigator.  The matters I was working on continued to need attention, the judges’ dockets were whizzing along, and my clients continued to need assistance.  So I just kept working.  And not studying.  About one month before the exam, the partner with whom I worked (and my mentor) came into my office.  He remarked, “What are you still doing here?  You are supposed to be studying.”  I told him that I had work that I needed to do.  He remarked that this was what colleagues were for, demanded my office key, unplugged and took my desk phone, and literally kicked me out of the office with instructions to study, study, study – and to do nothing else.  I am extremely glad that he did this, and that I followed his advice.  One month of study was probably the bare minimum I needed.

Written by guest blogger Martin Katz
Dean and Professor of Law, University of Denver Sturm College of Law
 

Book Review: ‘Laying Foundations and Meeting Objections’

Posted On By

Laying Foundations and Meeting Objections: How to Succeed with Exhibits at Deposition and Trial. Written by Deanne Siemer,  4th Edition,  2012  NITA  ebook.

This essential, practical guide for the trial lawyer takes the guesswork and the reliance upon imperfect memory out of the obstacle course that is the rules of evidence strangling your friendly collection of ‘intended’ exhibits.

Whether your quest is getting some exhibit evidence in or keeping it out, you need this ebook on your computer or tablet screen as you prepare and appear at depositions and trial.  With it this book at your side you can make decisions about text documents, numbers documents (e.g. charts, timelines, and data printouts), illustrative documents (e.g. maps, diagrams, and sketches), physical objects and substances, recordings (e.g. photos, imaging, recordings, and videos), replicas (e.g. demonstrations, animations, and reconstructions, etc.). You can also consider how to use testamentary aids and how to put the necessary arguments for or against admission.  This is a reference tool that saves you from the hindsight observation, “If only…”

An exhibit, the author reminds us, is admissible if it is something that reasonable people could use to draw a reasonable inference about the truth of a relevant fact.

Laying the foundation for such an exhibit to be admitted as evidence requires attention to CIRA, that being the sum of: competence of the witness to testify about the exhibit, identification of the exhibit in a defining way, relevance of the exhibit to an issue; and authentication that it is what it is said to be.

Where there is insufficient attention to any one of the elements then a successful challenge can be made.

Deanne Siemer has developed a comprehensive approach that explains the evidential law requirements and illustrates the application to each type of exhibit with transcripts of foundation and argued objections, thereby bringing the process alive.

To write this review the reviewer read the book from cover to cover.  That, however, is not the way to use this book in practice.   Read the opening part on fundamentals and then go directly to the part that covers the type of proposed exhibit.

For example, there is excellent coverage of the problems posed by computer-stored data, such as to how to validate that the data is ‘secure’ and free from tampering, and how courts ‘often fall back on three standard criteria…the use of routine procedures designed to assure accuracy, the presence of a motive to assure accuracy, and the absence of anticipated litigation when the data were generated’.

Little gems of deadpan insight appear unexpectedly, but often enough to be waited for.  One such is that ‘perishable, greasy, living, or dangerous things all have peculiar problems that can be resolved by careful thought and perhaps a conference with the judge.’  No doubt.  My mind wanders to an Aliens movie.

Another is that ‘when you read from any document, even if only a few sentences, you should give the court reporter a copy to help them more easily transcribe the reading.’  Some court reporters would nominate the author for their Hall of Fame for that suggestion.

And one more: that ‘no sophisticated animation can be cross-examined successfully at trial without…sufficient time to prepare for the cross-examination.’  This reflects one of Newton’s laws in that the time taken to make a good animation is generally so much that an equal contribution in lawyer time seems only fair.

When the author is discussing the pros and cons of a view there is this appealing suggestion of another way: bring the outside inside—have a large screen next to the witness in the courtroom. Have a ‘live’ feed from the view site so that an assistant at the view site can move the camera around at your request for the benefit of fact-finder, witness, and your opponent.  Be sure to have the images received in the court room stored and marked as an exhibit.

The success of this book is also due to the reader’s realization that those assessing the strengths and limitations of the present rules of evidence should ponder why that which should be straightforward has become so time consuming and complex.  As the author expertly and smoothly navigated from one rule to another, this reviewer could not escape this thought: “No wonder formal litigation is on the wane, while other forms of dispute resolution prosper.  This stuff is like counting angels on pinheads.”

Reviewed by Hugh Selby © who, along with his NITA friends Chris Behan and Charlie Rose, runs  www.advocacyteaching.blogspot.com, a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school.  He is based at the Australian National University. hugh.selby@anu.edu.au.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products

Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: