NEW WEBSITE FOR LAW STUDENTS

Becoming a Lawyer

A new website for law students has just been launched. Wolters Kluwer (our publisher and creator of the new website entitled “Becoming a Lawyer”) describes the site’s content as follows:

“Becoming a Lawyer is a community website and blog for law students that includes a wide range of different content topics related to the process of becoming a lawyer, including the trials and triumphs of getting into law school, being a law student, passing exams, studying for the bar, and starting a career. The blog features content from current law students, recent graduates, practicing attorneys and legal professionals, Wolters Kluwer Law & Business authors, law professors, legal experts, and Wolters Kluwer employees. The blog is managed and published by Wolters Kluwer Law & Business.”

The website will soon run an article by yours truly.

HIWAII PROSECUTORS AIM FOR SUSTAINABLE TRAINING

On the Road in Kona

Monday of last week I was in Hong Kong and watched a Barrister cross-examine the defendant in a high profile murder case – more about that experience here. Then, after a one-day turnaround in Seattle, travelled to Kona, Hawaii. Last Friday I conducted a day-long seminar on “Sustainable Prosecutor Training” for Hawaii’s prosecutors in the King Kamehameha hotel ballroom on the Kona side of Hawaii.

Charlene Iboshi, Prosecutor for the Big Island, spearheaded the creation of the seminar that would examine the needs for training (not only in trial advocacy but on all other aspects of the prosecutor’s roles and functions) and how to establish ongoing training. Charlene is pictured here having dinner with Nancy and me following the seminar. Unfortunately, Charlene Iboshi who is a strong advocate for prosecutor training will be retiring at the end of the year from being the elected prosecutor.

After my opening presentation on training methodologies, the morning session was devoted to brainstorming to determine the needs for and obstacles to prosecutor continuing education. This was accomplished through break out workshops followed by reports back from the groups to the whole. The workshop groups were divided by prosecutor’s office because the office size varies. The Honolulu office has over a hundred prosecutors and the others are substantially smaller. The size differential leads to different training needs and obstacles.

Besides the usual time and money barriers, the state of Hawaii has some unusual hurdles. One hurdle is that Hawaii is the only state where the position of Prosecutor Coordinator is vacant. A state’s Prosecutor Coordinator normally designs and orchestrates training for the state’s prosecutors. The National Association of Prosecutor Coordinators is an organization that enables Prosecutor Coordinators to exchange ideas about matters such as prosecutor training.

The afternoon session was devoted to determining how to overcome barriers to sustainable training, design meaningful training and ensure that it will be carried on. Again the approach was to breakout into same workshop groups with reports back to the whole. The groups discussed the following issues:

1. How can the obstacles to the establishment of a sustainable prosecutor career development training program (identified in the morning discussions) be overcome?

2. How can you energize lawyers and nonlawyers to plan for and implement solutions to those problems?

3. For each identified need:

a. What organization (prosecutor’s office, state or national) should provide the prosecutor training?

b. Who within the organization can manage and maintain the training program?

4. In-House Training: Given the busy nature of a prosecutor’s office, discuss these issues:

a. What topics should be taught?
b. When is there time available to conduct training?
c. Who can teach the subjects?
d. What course materials are available or can be created?
e. Who should be responsible for creating the materials?
f. Where should the training materials be stored, such as a central website for the office?
g. How do you create and maintain long-distance learning, such as having training broadcast to each prosecutor’s office?

5. Statewide Training: Turning now to training provided by the state, discuss the issues identified in number 5 above, such as who manages the training.

6. With the demise of the National Advocacy Center for state and local prosecutors, inexpensive nationwide prosecutor training for a large numbers of prosecutors has disappeared. Nevertheless, national courses are still being offered. How can Hawaiian prosecutors take full advantage of such courses?

Pictured here is one of the attendees reporting back to the group as a whole on the issues discussed in the workshop.

The seminar proved productive. For instance, one of the goals recommended by the groups is filling the vacant Prosecutor Coordinator position. In the near future, a report detailing the findings and recommendations of the workshop groups will be issued.

TRIAL LAWYER’S APPEARANCE – PARTICULARLY WOMEN

Law Students Spend a Day in Court

Seeing is believing and understanding. For the first time, I added to my Seattle University Law School Comprehensive Trial Advocacy course a requirement that the students spend a day watching a trial and write a report on what they observed and learned. The students went to different courts – federal, state and municipal. They reported on the skillfulness that some lawyers displayed and the ineptitude of others. Their experience in observing lawyers at work drove home points covered both in their class assigned readings, lectures and discussions about trial advocacy. It was a treat to read the observations of these novices, and here is one about the attorney’s appearance.

Student Tierney E. – Looking the Part

Student Tierney E. reported on her observations as follows: “I’m excited to see my first actual jury trial today. I’ve seen a lot of Mock Trial competitions, but never a real trial. I think this will be unbelievably helpful to me and will be and incredible chance to learn from watching attorneys. I’m in the federal district courthouse in Tacoma, and will be watching a civil jury trial in Judge Benjamin Settle’s courtroom.

“Speaking of which, I can’t help but notice that all four attorneys are male and white, which seems odd to me. I had hoped to see at least one woman litigating. The two parties involved are Ms. M_____ and ______ Insurance. Ms. M_______ is suing her insurance company, which did not pay her for one of her claims. As its defense, ____ (insurance company) claims that Ms. M_______ burned her own house down, and because of the arson, they aren’t required to pay her claim on the home.

. . .

“Looking the Part – How to Present Oneself as a Competent and Reliable Attorney

“It looks like defense counsel is wearing a tie with dogs on it, which makes it somewhat difficult for me to take him seriously. Maybe he is trying to negate the image many people have of insurance companies as big, bad corporations who don’t care about people, but I think he just ends up looking unprofessional.

“It makes me think about first impressions, and how your appearance might affect how the jury feels about you as a lawyer. I suppose this would also affect how the jury feels about your client and your case. I feel like dressing appropriately might be harder for women – men know to wear a dark suit, red tie, white shirt and you can’t go wrong. For women, there are more aspects to think about – makeup, hair, jewelry, etc. And the choices aren’t as clear- wearing plain black, but ugly or “sensible” shoes might affect how the jury thinks about you. On the other hand, wearing extremely high heels might also affect the jury’s impression of you as a lawyer.

“I recently read an article about professional women and makeup. The study asked the participants to look at three pictures of the same woman and decide which image made the woman look the most competent, reliable, and professional. The study found that when women wore some makeup (as opposed to no makeup, or a lot of makeup), they come across as more competent, reliable, and professional. So how much is too much? How much is enough? If wearing too much makes you seem flakey or unprofessional, and too little makes you look tired and unreliable (like you aren’t “put together”), how does a professional women strike the right balance? It annoys me that physical appearance can affect your efficacy as a lawyer so much, but it is a reality one must come to terms with."

REFORMING LAW SCHOOLS – BEYOND CARNAGIE

Professor Kristen Holmquist on Lawyerly Thinking

In a recent issue of Journal of Legal Education (Vol. 61, February 2012) Kristen Holmquist (pictured here), Associate Director of Professional Skills and Lecturer in Residence at UC Berkeley School of Law, assails the 2007 Carnegie Report’s conclusion that law schools successfully teach students to think like lawyers. She states, “Our pedagogy and curriculum – an over-reliance on neatly edited cases to the exclusion of working with messy, human facts, in ways that real lawyers might – obscures the inter-dependence of knowing and doing that is at the heart of thinking like a lawyer.”

Professor Holmquist’s Thesis: Law Schools Don’t Do a Particularly Good Job Teaching How to Think Like a Lawyer

Professor Holmquist argues that Carnegie’s contention that law schools effectively teach how to think like a lawyer misses the point that they don’t do so in the best sense of what it means to “think like a lawyer.” According to Holmquist, “It is not true that we do a particularly good job of teaching students to it ‘think like lawyers,’ at least not in the richest sense. Carnegie claim is made possible by artificially separating thinking from doing, and thereby too narrowly defining what it means to think like a lawyer.”

Professor Holmquist then examines what it means to think like a lawyer by broadening the definition of “thinking like a lawyer.” She suggests that options for analyzing what the phrase means and offers two. First, she describes an empirical approach by Marjorie Shulz and Sheldon Zedeck who identified 25 effectiveness factors, such as creativity and innovation, problem solving, researching. Second, she turned to psychology and a problem-solving model. After reviewing them, she concludes, “Drawing from just these two accounts of lawyering, it seems clear that legal education as currently configured teaches a rather anemic version of “thinking like a lawyer. . .In short, law school does good work with what it does but it does not truly teach students to think like lawyers.”

The Holmquist Prescription

Professor Holmquist’s prescription is as follows: “. . .First, I propose that we infuse our curriculum with factual, empirical and normative content far beyond that which can be gleaned from appellate cases. In fact, my suggestions might be understood as moving legal education closer to a liberal arts education (rather than further away, as many, rightly or wrongly, view the Carnegie proposals). Second, I believe that legal curriculum ought to expose would-be lawyers to the cognitive processes that inform the persuasion and decision-making central to lawyering. Finally, I propose that, at least in part, we shift our pedagogy to give students more experience with understanding legal problems from the ground up. So much happened in a case – lawyers and clients and judges have already made so many decision – before it ever reaches the phase of an appellate opinion. Moreover, and perhaps more important, most lawyering will never lead to an appellate opinion. We might develop new pedagogies that expose students to these many other forms of lawyering.”

Existing Courses that Fill Professor Holmquist’s Prescription

Professor Holmquist’s thesis is fine as far as it goes, but it does not acknowledge that some of us teach law school courses designed to do just what she proposes, and, in my experience, do accomplish what she espouses. For example, the Comprehensive Pretrial course that I and others teach, involves students with “messy, human facts, in ways that real lawyers” work. Students are given case files. They meet and interview their clients, interview witnesses, develop their cases, draft pleadings and discovery, engage in negotiations and so on. Along the way they encounter real world problems, such as witnesses with faulty memories, conflicting versions of events, and knotty legal issues. My trial advocacy course also seems to meet her three requirements. Professor Holmquist would do the academic community a favor by examining and reporting on courses that fill her prescription.

Addendum

I was curious about what Professor Holmquist’s reaction might be to the observation about her omission of any mention of current classes that might meet her criteria, and so I sent her this piece. She responded in this way: “Thanks for sending me your piece. I enjoyed reading it - and I'd love to see a syllabus for your class. It sounds fantastic!” (I sent her the syllabi).

What do you think? Do law schools fail to teach how to think like a lawyer? What courses that you are aware of fill Professor Holmquist’s prescription?

CHANGING MEXICO’S JUSTICE SYSTEM – INTRODUCING ORAL TRIAL ADVOCACY

Proyecto Diamante at the National Advocacy Center

Last week I participated in a program that is designed to dramatically change Mexico’s criminal justice system. It’s called “Proyecto Diamante,” and it is intended to bring oral trial advocacy to Mexico.

Proyecto Diamante, which was launched on February 7th, is an undertaking to train Mexico’s 2500 prosecutors and 6000 investigators in our American prosecutorial and investigative techniques. As U.S. Ambassador Anthony Wayne said, “Proyecto Diamante represents (Mexico’s) Attorney General Morale’s commitment to the transition from an inquisitorial justice system to a more accusatorial justice system.” To achieve this monumental paradigm shift from Mexico’s current system, which presumes the defendant guilty to something like ours is a breathtaking endeavor.

I served on the faculty of the Department of Justice’s Proyecto Diamante Faculty Development Course at the National Advocacy Center (pictured above), located in Columbia, South Carolina. Course attendees were bilingual Department of Justice trial lawyers. They were being trained to teach trial advocacy (specifically opening statement, direct examination, cross-examination and closing argument) in Mexico. Currently, a defendant in Mexico is subject to a “trial by file” system; the judge reads the statements in the file. The ultimate goal is to shift to an oral trial advocacy system.

Carlos Acosta and Michelle Lakomy orchestrated the course. Faculty members were Margaret Fent Bodman, Stacy de la Torre, Rex Gordon, Judge Robert Holdman, Kim Lindquist, Octavio Perez Nava, Bridget Healy Ryan, Janice Schryer, Judge Jill-Ellyn Straus, Patti Sudendorf, Kevin Sundwall, and John Tierney.

The attendees at the course were dedicated and enthusiastic. It was an honor to work with them and be a part of this monumental, historical endeavor.

This press release provides additional details about Proyecto Diamante.

View more pictures of the, Center, instructors and attendees here.

CLINT EASTWOOD AND ADVOCACY

Halftime Pep Talk and Trial Advocacy

Super Bowl has come and gone. As have the ads. Much has been said and written about Eastwood’s halftime advertisement for Chrysler. Carl Rove attacked it, claiming that it was a payback to Obama for the bailout. Joe Klein in Time magazine mused over how Rove and the Republicans got it all wrong and how Romney suffered from “his party’s silliness.”

But, before the advertisement and these musings fade into history, the advertisement is worth remembering for what it was – a dynamic piece of advocacy. It was both well written and delivered; it serves as an example of powerful oral advocacy. It is the kind of persuasion that is ideal for a call to arms at the end of closing argument. Let’s revisit it and examine both the content and delivery.

Content

Here is the script again:

Eastwood: “Seems that we’ve lost our heart at times. The fog, the division, the discord and blame made it hard to see what lies ahead. But after those trials, we all rallied around what was right and acted as one. Because that’s what we do. We find a way through tough times, and if we can’t find a way, then we’ll make one.

“All that matters now is what’s ahead. How do we come from behind? How do we come together? And how do we win? Detroit’s showing us it can be done. And what’s true about them is true about all of us. This country can’t be knocked out with one punch. We get right back up again, and when we do the world’s going to hear the roar of our engines.”

The pep talk has at least four elements of a great advocacy. First, it is a story about overcoming obstacles and having fortitude: “We find a way through tough times, and if we can’t we find a way, then we’ll make one.” Second, it contains an ethical argument: “rallied around what was right.” Third, it uses a fitting analogy – a fist fight: “This country can’t be knocked out with one punch.” Forth, belonging and teamwork: “we” repeated throughout the message.

Delivery

While the pep talk is extremely well written, it is Eastwood and his delivery that make it so powerful. The truism is that you are your case. Here, Eastwood is the message – we will come back and succeed. He exudes confidence, grit and sincerity. He delivers the message in his best Dirty Harry, Grand Torino gravelly voice.

When crafting final words for a closing and how to deliver it, this ad is a nice reminder of how to do it perfectly.

CLOSING ARGUMENT PITFALLS

Checklist of Don’t for Closing Argument

Don’t damage your closing argument by stumbling into these pitfalls. Avoid:

 A preramble. “First I want to thank you. This has been a long trial . . .blah . . .blah.”
 A weak beginning.
 Obviously attempting to ingratiate yourself with the jury.
 Projecting insincerity. Making an argument you don’t believe in. Projecting confidence in the case is critical. The attorney is the case.
 Being disorganized.
 Not using logic in the argument.
 Not making an emotional appeal (provided it’s not an impermissible appeal to passion and prejudice).
 Not making an ethical appeal to the jury’s sense of justice, fairness and so on.
 Misstating the law.
 Misstating the facts.
 Improper argument, such as appeals based on race, religion, passion and prejudice, matters outside the evidence and pejorative appellations.
 Stating a personal opinion - “I believe . . .” Rule of Professional Responsibility 3.4(e)
 Confusion unless that is the defense in the criminal case.
 Speaking in plain English.
 Translating the important jury instructions into language that jurors can understand.
 Speech devises, such as analogies, to drive home points.
 Restating the facts. The story already should have been told in opening and throughout the case. This is the time for argument, not a statement of facts. Incorporate facts into the argument.
 A podium unless the court requires otherwise. It’s conversational, not a lecture.
 Losing eye contact. Reading.
 A disconnect between the nature of the case and demeanor, such as anger in a forgery case.
 Just saying it. Visuals and exhibits will bring the closing to life – tell and show.
 Trying to be someone you’re not.
 “This is a complex case.” “This case is simple.”
 Being themeless
 Too many details.
 Leaving the jury in doubt as to what they should do. What should be their verdict?
 A weak conclusion. Rather, have a powerful call to arms.
 Being boring.
 Going on too long.