Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is an essential trade skill for litigators and is taught in law schools and in continuing legal education programs. It may also be taught in primary, secondary, and undergraduate schools, usually as a

mock trial A mock trial is an act or imitation trial. It is similar to a moot court, but mock trials simulate lower-court trials, while moot court simulates appellate court hearings. Attorneys preparing for a real trial might use a mock trial consisti ...

elective. The skills of trial advocacy can be broken into two categories: skills that accomplish individual tasks ( tactical skills) such as selecting jurors, delivering opening statements and closing arguments, and examining witnesses, and those skills that integrate the individual actions to achieve greater effects and to drive unfolding events toward the advocate's desired outcome ( strategy) . Most law school trial advocacy courses focus on tactical skills, though some integrate basic methods of strategic planning. Some academics have expressed disfavor with advanced strategic techniques because of the imbalance they create, especially against attorneys who are unaware of them. Proponents of advanced strategic techniques argue that these methods are the only effective means to counter the already-existing imbalances in the system, as between

indigent Poverty is the state of having few material possessions or little

income

defendants and the state, and between working-class plaintiffs and well-resourced,

wealth Wealth is the abundance of valuable financial assets or physical possessions which can be converted into a form that can be used for transactions. This includes the core meaning as held in the originating Old English word , which is from an I ...

y corporations.

History

Like most legal skills, trial advocacy evolved through the apprenticeship and practice of attorneys. Even after 1900 (when the education of attorneys shifted to

law schools A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction. Law degrees Argentina In Argentina, l ...

) most law schools offered little education in advocacy. In 1969, in response to criticism within the judicial system that law schools were not properly preparing attorneys for trial practice, a group of lawyers and law professors combined to form the

National Institute for Trial Advocacy The National Institute for Trial Advocacy (NITA) is an American not-for-profit organization that provides lawyers with training in trial advocacy skills. NITA's founding was brought about in 1971 by the Committee on Advocacy of the Section on Ju ...

(NITA). Since then, many law schools have added or improved their instruction in trial advocacy, and numerous Continuing Legal Education organizations have offered classes surveying the subject area, and on specific topics within the field. Currently nearly one dozen law schools in the United States offer Master of Law (LL.M.) degrees in trial advocacy. Trial advocacy originally focused on individual actions within the trial, proposing methods for improved selection of jurors, delivery of argument, and direct and cross examination. However, in the 1970s, NITA advanced the concepts of theme and theory as methods of integrating the various components into a cohesive whole. More recently,

litigation strategy Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the verdict, or the ...

has blossomed with the importation of concepts from economic game theory, complexity theory,

Gestalt psychology Gestalt-psychology, gestaltism, or configurationism is a school of psychology that emerged in the early twentieth century in Austria and Germany as a theory of perception that was a rejection of basic principles of Wilhelm Wundt's and Edward ...

, and the application of

maneuver warfare Maneuver warfare, or manoeuvre warfare, is a military strategy which seeks to shatter the enemy's overall cohesion and will to fight. Background Maneuver warfare, the use of initiative, originality and the unexpected, combined with a rut ...

as a means not only of integrating the various actions within the trial into a comprehensive case, but also as a means of gaining a decisive advantage over opposing counsel.

Topics

The topics commonly encompassed within Trial Advocacy are:

Jury selection or ''voir dire''

The selection of jurors that will be receptive to the argument the attorney intends to make.

Opening statement

Presenting a non-argumentative overview of what the jury will see, often in the context of the attorney's theme, theory and story.

Direct examination

Eliciting evidence from one's own witnesses through non-

leading question In common law systems that rely on testimony by witnesses, a leading question is a question that suggests a particular answer and contains information the examiner is looking to have confirmed. The use of leading questions in court to elicit tes ...

s. Because studies have shown that people best remember the first and the most recent (last) information heard (methods referred to as primacy and recency), the preferred method is to start with an engaging and favorable topic, move through more mundane matters, and to finish on a strong, favorable point.

Cross examination

Working with witnesses offered by the opposing party who may be hostile or uncooperative.

Closing argument

Using argument to create within the jurors a perception of what they have seen and heard that influences them to find in favor of the attorney's client.

Persuasion

The general principles that enable an advocate to make the jurors more receptive to his claims.

Mock trial

In mock trial, students take responsibility for the

prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...

/ plaintiff or defense case in a trial presented using fabricated evidence, and role-players as witnesses and faculty or volunteers as judge or jury. It evaluates the participants’ skills in argument, evidence handling, and examination of witnesses, but omits jury selection and strategic matters. Mock trial differs from

moot court Moot court is a co-curricular activity at many law schools. Participants take part in simulated court or arbitration proceedings, usually involving drafting memorials or memoranda and participating in oral argument. In most countries, the phrase " ...

in that moot court practices appellate argument, and so involves no handling of witnesses or evidence, but rather is an exercise in legal research and oral advocacy.

Basic trial strategy

The means of organizing a case into a clear and complete presentation. * Case Diagrams: In which the attorney charts the elements he / she intends to prove (or attack) and the evidence that will support each. These ensures the case is comprehensively addressed. * Theme and Theory: The theme is a sound bite that captures the emotional appeal of the case, and the theory is an explanation of events. These serve as strategic focal points, allowing individual actions (opening, examination of each witness, etc.) to be united with a common focus, and in a way that clarifies and reinforces the perception of the case the attorney wants the jury or judge to adopt.

Advanced trial strategy

The means of organizing the case to maximize the combined impact of every element, and to overwhelm or outmaneuver the opposing counsel while presenting a clear, decisive argument to the jury (or judge, in the case of bench trials). Advanced strategic skills, based upon

psychology Psychology is the scientific study of mind and behavior. Psychology includes the study of conscious and unconscious phenomena, including feelings and thoughts. It is an academic discipline of immense scope, crossing the boundaries between ...

and military maneuver philosophy, are generally learned outside the classroom, as few law schools teach them. In fact,

academic An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of secondary or tertiary higher learning (and generally also research or honorary membership). The name traces back to Plato's school of philosophy, ...

s have criticized advanced strategic techniques for tipping

verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales ...

s through means unrelated to the

merits of the case In law, merits are the inherent rights and wrongs of a legal case, absent of any emotional or technical bias. The evidence is applied solely to cases decided on its merits, and any procedural matters are discounted. The term comes from Old French ...

. For example, these techniques may be used to cause an advocate unfamiliar with them to take actions that unwittingly undermine his client's interests. There is particular concern regarding the use of advanced strategic techniques by prosecutors, who already wield the substantial power of the State against often poorly resourced defendants. The counterargument is that strategy can correct already-existing imbalances in the justice system, such as when inexperienced advocates must face highly experienced ones, when small firms oppose large ones, and when poor clients must litigate their rights against wealthy ones. Under the current system, without a well-developed strategy, a small firm with a poor client stands almost no chance of success against a large firm with its greater resources, regardless of the merits of the case. * Maneuver strategy: An alternative to arguing the evidence or the law, maneuver strategies pursue solutions such as redirecting the focus of the trial, reshaping the way events are perceived, or disrupting or surprising the opposing counsel, rendering him ineffective at responding to unfolding events. While these methods are practiced widely, even by advocates not educated in strategy, some object to this as improper even when practiced ethically, as it subordinates the importance of the evidence and the law in determining a trial's outcome. One proponent of maneuver strategy, however, has noted that regardless of whether the attorney intends to leverage the tools of maneuver strategy, the attorney must understand the methods or she will be ill-equipped to identify and counter them. *

: This branch of psychology focuses on how things are perceived in whole as opposed to how individual components appear. It aids in ensuring the jury (or judge, in bench trials) perceives events as the attorney desires, and it offers a means of shaping the way witnesses and opposing counsel will perceive the problems an attorney raises for them during trial. When coupled with game theory, shaping perception allows an attorney to influence or shape the actions the hostile witness or counsel take. * Game theory: Game theory offers models of how people make decisions. In trial practice, game theory is useful in predicting the likely actions witnesses will take when presented with a decision. Because decisions are framed according to how they perceive a situation, when game theory is coupled with Gestalt psychology, attorneys can present problems to witnesses or opposing counsel in a way that increases the likelihood of them making decisions about their responses that improve the attorney's strategic position. * Lines of effort: In the way a case diagram matches evidence to elements, the line of effort matches actions to specific effects the attorney intends to the various results that achieve her or his goal.Dreier pp. 47–65

References

Bibliography

* Dreier, A.S. ''Strategy, Planning & Litigating to Win''. Boston MA: Conatus, 2012. * Korzen, John ''Make Your Argument: Succeeding in Moot Court and Mock Trial''. New York NY: Kaplan 2010. * Lubet, Steven ''Modern Trial Advocacy''. South Bend IN. NITA, 2004. {{Law , state=expanded Legal education