Criminal Trial Advocacy
INTRODUCTION
copyright © Ray Moses 2001
all rights reserved

Trial Advocacy - the art of getting a juror to to do something you want done
because s/he wants to do it.

This course is designed to provide highly motivated law students with the opportunity to develop trial skills as advocates in the criminal courtroom.
It is not an academic exercise.
It is about the reality of gaining a competitive edge when presenting a case to a jury.

Other courses claim that they will teach you how to think like a lawyer.
The purpose of this one is to teach you how to be a lawyer.

It's not enough to know how to ride, you must also know how to fall.

In the long run, spoonfeeding teaches us nothing but the shape of the spoon.

It matters not whether you win or lose....what matters is whether I win or lose. (joke)  


Trial Advocacy in the Law Schools

There are six ways we can learn about the practice of law while still in law school:

  • Exposition: The subject is explained to you by someone who is an authority. The method of explanation is typically by lecture, reading books, listening to tapes and/or watching visuals.

  • Discussion: After being exposed to exposition, you discuss what you have heard or read.

  • Demonstration: You watch and/or listen to live or recorded tell-and-show demonstrations of a task being performed by people who know how to perform it.

  • Simulated Litigation:  You perform common skills tasks of an advocate in an assigned role. The tasks in the basic trial advocacy course typically include jury selection, opening statement, direct examination, cross-examination, making and meeting objections, expert testimony,  and jury argument. You learn some of the basics about how to tell a persuasive story
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  • Farm-Out Externships: You are placed in a real-world training program working as an extern in public interest organizations, businesses, agencies, judges' chambers, prosecutor's offices, and criminal defense law offices.

  • Live Clinic: You have the experience of representing real clients in a setting where you are supervised by a clinical professor. You also have the satisfaction of providing a public service by contributing your time and service pro bono in the interest of the poor, the public and the government. [If you are fortunate enough to attend a law school that offers a live-client criminal defense clinic, e.g., (1-Stanford), (2-Texas), (3- Denver), (4 - Penn), (5-NY), (6-Washington), (7-Alabama), (8 - Washington & Lee), (9- CUNY), (10- Widener), (11- Tulane), (12- Virginia), (13- St. John's), (14 - Roger Williams), (15 - Ohio State), (16- Colorado), (17- Syracuse), (18 - Georgetown), (19- OU), (20- Connecticut), (21- Washburn), (22- Texas Tech), (23- Indianapolis), (24- UCLA), (25 - Fordham), etc., a Criminal Trial Advocacy simulated litigation course provides a base level of skill for that endeavor. If your law school does not offer a live client criminal defense clinic, you'll have to wait until you are licensed to practice to get real life criminal defense experience in the law school setting.]

The last three forms of instruction - simulated litigation, farm-out externships, and live clinics -  are relatively new forms of learning. Until the last quarter of the 20th Century, law schools did not set out to teach their students how to do what trial lawyers do, namely - ask questions, make and meet objections, and give speeches.  Starting in the 1970's, in response to demands from the practicing bar and the bench, virtually every law school in the country created active simulated litigation courses, externships, and/or live-client clinics. [Note: The American criminal trial lawyer of today, be s/he prosecutor or defender, had his genesis in the common law courts of Old Bailey in London. If you' want to be a trial lawyer, take several hours and transport yourself back to 18th century England by visiting Old Bailey Online and examining the proceedings and trials from 1714 to 1799.  You may be interested to know, simply put, that for part of this period the criminal trial of an accused felon was basically an argument between the alleged victim and the accused; trained prosecuting attorneys and criminal defense counsel were barred from participation; the trial was overseen by a judge and there were witnesses; a hangman's noose awaited the convicted defendant. Compare the structure of this crude attempt to achieve justice with the anatomy of a modern day criminal trial (1), (2) where skilled prosecutors and defenders choreograph and present the evidence.]  

Pretrial and Trial Advocacy on the Bar

Be aware that skills performance is now a part of the bar examination in many states, e.g., TX.  In these states the bar exam includes a multistate performance test (MPT), a skills test designed to assess the examinee's ability to use fundamental lawyering skills in a realistic situation. During the test, each examinee receives a "file" of fact-based source documents, such as witness statements, letters, depositions, and affidavits, plus a "library" of cases, statutes, regs, and rules. Using these materials, the examinee is required to perform an assigned lawyering task, e.g., writing a memorandum to a supervising attorney, a letter to a client, or a closing argument. Contact the National Conference of Bar Examiners for sample MPT exams. The multistate part of the bar examination tests on criminal law (crimes, defenses, and punishment). The state bar exam typically tests on federal and state, e.g., TX, criminal procedure and evidence. 

Development of Trial Skills Essential to Future Defenders and Prosecutors

Lawyers are problems solvers. But as a prosecutor or criminal defense lawyer in the U.S., your role is expanded to that of a competitive problem-solver and trial litigator. Criminal cases are about actual controversies with alleged victims and clients at risk. Prosecutors and defenders typically try to do what is necessary to avoid trial. We interview witnesses, complainants and clients, investigate, prepare and litigate pretrial motions, conduct informal and formal discovery, negotiate plea bargains, and enter pleas of guilty. See Pretrial But to function effectively in the American criminal adversary system, we must have the trial skills of the warrior lawyer. Because most cases settle, usually by way of a negotiated plea of guilty, we normally won't need our litigation tools. But some cases don't settle. If your case doesn't settle by a plea, only two things can happen. One, the case goes away because charges are dismissed. Two, if the charges are not dismissed, the case must tried. If you don't have trial skills - if you can't fight in the courtroom for the side you represent - you are powerless against an opponent who does possess such trial skills.

Most large prosecutor's offices have some sort of in-service training. Though they might not readily admit it, many of the current in-house training programs are copied from law school trial advocacy courses like this one (functioning since 1974).  Even if there is no formal in-house training program, the fledgling prosecutor will usually be taken under the wing of a more experienced  colleague. Would be defenders have a similar opportunity in public defender offices. But, for many recently licensed lawyers who enter the criminal defense practice, no formal or informal mentoring is available. With no support or training services, these rookies are still expected to perform like lawyers from day one. 

You've spent the last couple of years learning how to think like a lawyer. Our course, Criminal Trial Advocacy, provides you with an opportunity  to learn how to perform like a lawyer, while still in law school - how to integrate theory into courtroom practice. Our CTA course is about helping you to build self-confidence in your ability to do what lawyers do in criminal trials. How do you build confidence in you ability to communicate in the courtroom? You do three things:

  • Determine what needs to be done.
  • Learn how to do it.
  • Practice doing it enough times that you will feel a measure of confidence in your ability to do it.

A trial lawyer's trial skills are like a carpenter's tool box. A good carpenter will determine what tools s/he needs to do the job. S/he acquires those tools and learns how to use each one to accomplish the goal. With just a hammer, a carpenter can't do a  professional and creative job. In fact, as the old proverb goes, if the only tool you have is a hammer, you have to visualize every problem as a nail. Like the carpenter, to build a sound case, you need many tools of the trade, and you need to know when and how to use each of them.

Stages of Development as a Trial Advocate  

As a trial lawyer, you will go through three stages of professional growth and metamorphosis:

The First Stage - Technique   Think of the first stage of your growth as the "technique" stage. As a beginner.your greatest interest is in gaining control of trial techniques and learning how to apply the rules of evidence in practice. The goal at this level of experience is to muster sufficient skills to competently try a case, using standard techniques. Examples would include knowing how: to ask open-ended questions during jury selection; to tell the factual story of your case in opening statement; to impeach an adverse witness with a prior inconsistent statement or a prior conviction; to lead a witness on cross-examination; to attack or support an accused, alleged victim, or witness with character evidence; and to make a compelling jury argument. Technique is mastered through study, imitation, and practice.

The Second Stage - Organization  The second stage in your growth as a trial advocate can be described as the "organizational" stage. As you gain technical skill, you realize that you have to be able to organize your case into its most persuasive design. Your goal is not only to try a case with technical competence, but also to be able to design and structure your case for maximum persuasive impact. Organization is acquired through understanding of how to structure your offense and defense into the most communicative form.

The Third Stage - Creativity, Imagination, Innovation  The third stage of this organic growth process is the "creative, imaginative, and innovative" phase. Imagination and creativity will get you nowhere without technical and organizational skill. But your creativity and imagination are free to flourish when you have acquired both technical and organizational skills. Insight into human nature is the key to communication skill. Trial lawyers who reach this level  have begun to understand how to harness their understanding of human nature and what moves the human spirit. Creative ideas are fragile and easy to kill, but these lawyers are so strong and confident that their creativity thrives. These advocates have learned to channel their understanding of people into their presentation. They are students of how jurors watch, listen, and react. They involve their jurors. They shape and mold their cases. When contemplating  innovative presentation of evidence, the creative trial lawyer doesn't say, "The judges in my jurisdiction won't let us do that."  Instead, the third level lawyer tries to brainstorm new ways of doing things. The creative, imaginative, and innovative lawyers are the trailblazers about whom stories are told. Their motto is: "Who never walks save where he sees other men's tracks will make no new roads."

Our CTA Course

Our simulated litigation course focuses on the advocate's job in criminal trials. I do not teach this as an ornamental "grime" third year course. The training is rigorous and rewarding for those who do the work. We will follow the typical three-part clinical learning process.

First, we learn how to do tasks before we try to do them. This requires out of class reading, planning, and preparation. I have provided you with a series of ten monographs (+1000 pages)  that explain how to do the tasks. In addition, each problem in the Assignment book has a discussion note that provides detailed suggested methods that you may wish to use to prepare the problem. I'll also give you guidance in the form of a mini-lecture and group discussion at the beginning of class.

Second, we perform the litigation problems. We practice prearranged situational techniques that are akin to those you will need to utilize in the trial court.  We learn by doing and by watching others. Active participation is required.

Third, we analyze what we did and why. At this third stage, we focus on feedback by critiquing one another in class and by written critiques delivered through our e-mail discussion group.  Our primary purpose of critique is to help us learn to correct our errors and faults by grasping what our weaknesses are. Everyone must take part in the CTAforum e-mail discussion group.

The goal of the course is to equip you to think and act like a trial lawyer. The emphasis is on both thinking and doing. Each of us will try in our way to become capable of being the kind of lawyer that can get things done in the courtroom. "Likability" is certainly a factor in the calculus of persuasion. I am not so bold that I can promise to teach the Dale Carnegie politics of "how to make jurors "like" you."  However, as we consider the psychology of persuasion, we will try to become less self-conscious and more self-aware. We will try not to be egoists and try to be communicators. Maybe we'll learn that getting jurors to like us is simply the flip-side of liking them. One can only trust that in the process we will become more "likable (likeable)"

You can't play the game, unless you know the rules! We are going to be learning skills and developing competence for the professional practice of criminal law as prosecutors and defenders. Technique and natural ability  alone won't do the trick. Before you can even think of learning persuasive tactics and strategy, you've got know the rules of the game and how to apply them in court. This means you must gain some comprehensive mastery of the substantive criminal law, constitutional due process, criminal procedure, and evidentiary law that govern the presentation of criminal evidence. In our case, this means that you will learn a bit more about the practical application of the Texas law of crimes, defenses, criminal procedure (You will be conducting your pretrial and trial problems under the Texas Rules of Criminal Procedure.), and, most importantly, the Texas Rules of Evidence. The Texas Rules of Evidence (2016), Texas Penal Code, and Code of Criminal Procedure are available on the Internet.

First Ten Weeks:  The first ten weeks of the class will be spent honing trial techniques and skills such as use of exhibits, direct examination, cross-examination, expert testimony, making and meeting objections, dealing with evidentiary issues,  jury selection, opening statement, and jury argument. We are going to make you a more skillful trial lawyer - a "doer" of things in the courtroom  In the courtroom environment what you do can become more important that what you know.  After three years of law school, you may find yourself stored full of unused knowledge, like a loaded gun that is never fired. This course is different. We are going to stuff ourselves with ammunition, but we will use it. Constraints of time prevent us from devoting much of our energy during the first ten weeks to the subject of pretrial criminal practice, e;g., interviewing clients and witnesses, locating witnesses, pretrial investigation, reviewing police reports, memo writing, motion practice, etc.,  - the process of identifying and marshaling evidence in preparation for trial.  We will, however, devote all or part of a session on each of these three topics: interviewing clients and witnesses, suppression of evidence, and plea-bargaining (negotiation and settlement).

The pretrial process is of enormous importance, particularly to those who practice criminal law on the defense side of the aisle. Skill in knowing how to investigate your case and how to develop your facts is essential to success in court. Lawyers who try cases don't simply tell the jury what happened in the past. Instead, they sculpt their proof from information that they develop, somewhat like Michelangelo, who, when asked how he was able to create such wonderful statues, said, "I see the figure in the block of marble and carve it out to set it free." By choices of evidence and proof, trial lawyers carve and shape perceptions of the past out of a conglomerate of potential information.  The carving is done in a manner that is consistent with the theory of the case. What emerges is the advocate's version of the truth, perhaps more an illusion of truth than pure truth. [You'll have to learn pretrial criminal practice in the real world, as there is no course in the curriculum devoted to providing training in this very important aspect of criminal practice.]

  • Keep Your Written Work Product for the First Ten Weeks:  Everything that you do by way of written preparation of the exercises during the first ten weeks, as well as every critique you write and those that are written about you, should be placed in a notebook. You will turn this  accumulated ten-week work product in to the instructor at the end of the first ten weeks. It will be factored into your grade for the first ten weeks. 

  • Be Prepared to Struggle During the First Ten Weeks: Lawyering is a form of problem-solving. In our simulated criminal litigation course, we try to help you get ready for this job by preparation, planning, and practice. This means exposing you to some of the problems you will encounter as a trial litigator.  We hear it said that every American is entitled to "justice in a court of law." And we have all heard the old bromide: "Every person accused of a crime is entitled to his day in court." But it is a big mistake to think that justice, in the form of fair treatment, automatically flows from our court systems. Courts are courts of law, not justice. If you are a prosecutor you must work to bring the guilty defendant  to justice. If you are a defender, the justice that your clients will get from courts is the justice that you demand and fight for in their behalf. Both sides have to struggle to get justice, and the effort always exacts a personal cost. A criminal trial can make jungle warfare look like a tea party. Whichever side you are on, you've got to be ready. The will to win is important to success, but your will to prepare is more important!

  • Breakdown of the First Ten Weeks: The trial lawyer's role is multi-faceted and so is our course. In this simulated litigation course, we emphasize the trial advocacy function of criminal practice, but we also give you some limited exposure to other functions of the criminal practitioner. You  will find that the course encompasses the lawyer's function as:
  • Advocate - Assignments #2-9 as well as the pretrial conference and the mini-trials focus primarily on trial advocacy.
  • Counselor - Assignment #1 focuses on interviewing and counseling.
  • Investigator - All of the mini-trials and some of the problems involve some investigatory tasks such as talking to witnesses, preparing exhibits, conducting formal and informal discovery, etc.
  • Negotiator - Assignment #10  focuses on plea bargaining your mini-trial case to a negotiated settlement.
  • Planner - All the problems and mini-trials require you to formulate a plan, i.e., to decide in advance what your goal is and figure out how best to achieve it.

  • Studied Experience Is A Great Teacher: Our course is premised on the proposition that knowledge used is better remembered. In other words, when we acquire knowledge and use it to help us perform a task, we remember it better than knowledge acquired without motivation to perform a task or solve a problem. Learning how to do things that courtroom lawyers do is a means to an end, but its also an end in itself. It gives you personal and professional satisfaction, confidence, and pride to know what to do, when to do it, and how to do it.

  • Training in a Riskless Environment: We are going to be learning by doing in both our oral and written communications. In this course, we learn to apply rules of evidence and techniques of persuasion by applying them in skills exercises. It's like learning to fly an airplane. You can learn the basics of flying by reading about how to do it. You also quite a bit about flying by listening to someone tell you how to do it. But the best way to actually learn the skill, after you've studied, is by doing it in simulated practice in a flight trainer. It's the same with this trial practice course. What we will be doing might be compared  to ground school.  You read how-to-do-it materials, and  you listen to your instructor explain the niceties of the technique. Then you perform the skills in a simulated environment.  When you crash and burn, as you must from time to time, no one perishes or gets hurt. Another analogy would be to the medical student who learns her craft by operating on a cadaver. If you screw up here, no one dies, innocent folks don't go to prison, guilty folks don't walk, and you don't get accused of being an ineffective lawyer.

Last Four Weeks: You've spent the first four weeks learning and practicing the fundamental techniques necessary for the trial of a criminal case. You put those learned skills to use during the last four weeks. It's at this point that you will try a criminal lawsuit from start to finish in front of a jury. We call these trial "mini-trials." You will also prepare and respond to pretrial motions relevant to your mini-trial and have those motions ruled upon at a pretrial conference. As is true with the first ten weeks, everything that you do is videotaped. We also videotape your jury's deliberations.

Absences: You are allowed 2 absences during the entire 14 class sessions. School regulations require that you be dropped with a "WF" on your third absence. Because this is a participatory course, you are graded for your preparation and participatory effort in each class session. If you are absent for a class, you are still responsible for doing the preparatory  work for the problems in that assignment and including that work product in your 10-week notebook/journal.  If there is a written assignment, you are responsible for preparing and filing it in a timely manner, irrespective of your absence. 

My Approach

Winston Churchill said, " I'm willing to learn, but I'm not willing to be taught."  I have always resented having some pompous know-it-all tell me how the cow ate the cabbage. I'm betting you feel that way too. So, I'm not going to pretend that I can teach you to be a great trial advocate. But I do promise that the course I have put together can help you expand and sharpen your skill.  In the vernacular of the florist: I won't give you a bouquet of cut flowers, but I will help you learn how to grow your own. I don't claim to have all the answers, but I have enough of them to help you. If you are willing to invest your time and effort, I can guide and facilitate your growth as a criminal trial advocate. Part of my mission is to prepare you to teach yourself to be a more effective presenter, performer, and persuader when you graduate from this academy and get your ticket to advocate in a courtroom.

Gerry Spence, the famous Wyoming criminal defense lawyer, calls law professors "the morticians of the legal profession." There's some truth to that description of academicians. But you will find that I don't teach this course from an academic standpoint. My goal is to help you get a lasso over the rules and the skills that you must master to perform well in court.  My purpose is to help you. I'm not interested in trying to show you how much I know. My interest is in getting you ready for your day in court. I measure my success by your dedicated effort.
  
I do reserve the right from time to time to step up to the plate and demonstrate the approach I might take to the problems I have written for you. Oftentimes, a good teacher will show in action what s/he preaches. You may be able to better learn how to do some tasks if you can see them being done. That's the thesis of The Learner's Prayer:

I'd rather see a lesson than hear one any day.
I'd rather you walk with me than merely show the way.
The eye's a better teacher and more willing than the ear.
And counsel is confusing, but examples always clear.
The best of all the teachers are the ones who live the creed.
To see good put into action is what I really need.
I soon can learn to do it if you let me see it done.
I can see your hand in action, but your tongue too fast may run.
The counsel you are giving may be very fine and true,
But I'd rather get my lesson by observing what you do.

One person's way may be a good as another's, but we usually like our own way best. So, I will naturally favor my own way of performing the skills tasks. But I encourage you to march to the beat of your own drums. Think outside the box. Develop your own individual style. Just be ready to explain why you did it your way.

My goal here is to nourish you to excellence through study and training. I want each of you to be equipped to confront stuff-shirts from the big name law schools and the silk stocking law firms and wipe the courtroom floor with them. More on my feelings can be found on the Philosophy re Skills page.
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Your Job in the Course

Some people may be born great. But most folks achieve greatness through effort. Each of you can be a great lawyer. It's all about desire, determination, and effort, coupled with a sense of professionalism that doesn't become corrupted by desire for money and fame.

We each have to do our own bit to make this class work. A brief story illustrates my point:  The residents of a small Spanish village determined to honor their village priest by each bringing to the parish house a bottle of wine for the priest's empty wine barrel.  When the barrel was filled, the priest was so delighted.that he asked all the parishioners to join him in a glass of wine from the barrel. But when the tap was opened, only water came out. You see, each parishioner had brought water instead of wine - each of them thought that all the others would bring wine and that 1 bottle of water would never be noticed......  I am like that village priest asking each of you to bring your undiluted efforts to this class, never counting on the efforts of your classmates to mask your lack of commitment.

So, be prepared for class, attend class, arrive on time, act respectfully toward all class members, and avoid disruption, e.g., turn off all cell phones and pagers, avoid engaging in side conversations, and do not use your lap top computer to net surf, game play, or answer email during class.

Feedback from Your Peers Through Weekly Critiques - In this class, we are all critics and all performers. Our goal - to learn from our mistakes. I'm going to ask a great favor of all the participants in this course. It won't be easy for you to grant me this favor, but, if you do, it will be of great help to you in the long run. I'm going to ask you throughout this course to openly accept criticism from me and from your fellow students. There is nothing that we human beings receive with so much reluctance as critical advice, particularly when we haven't asked for it. We all want to be remarkable, and criticism from others is a hard pill to swallow. Moreover, it's real hard to make criticism charming. They say "flattery is the food of fools," but you will find yourself wanting to say only nice things about your colleagues and hear only laudatory things about yourself. Somerset Maugham said " People ask you for criticism, but they only want praise." Our egos lead us to prefer false praise and flattery rather than honest criticism. Try to avoid the "I will flatter any person that will flatter me" attitude. False flattery (insincere or excessive praise) will stunt your growth as a trial lawyer. Don't inhale it. Of course, everyone in the class will do plenty of things that will be worthy of praise, and I want you to bestow praise when it is deserved. No one in the class should suffer from lack of well deserved praise for specific efforts. But mere praise, even when it is keyed to specific courtroom conduct, will never bring the improvement that we are seeking.

We have to talk about our mistakes. We learn from our mistakes only if we are aware of the mistakes we've made. [By the way, don't worry about making mistakes. The only way you can avoid mistakes in this course is to do nothing. Indeed, it you happened to perform one of the problems perfectly the first time, no one would appreciate how difficult it was.] It's hard to visualize yourself as others see you. What you plan to do, what you do, and what you think you did will each be a different reality. So, I am asking your fellow students (who have also prepared the problem) to look for your weaknesses, the areas where you can improve, and call them to your attention. Better a little chiding now than a great deal of embarrassment in a real court before a real jury. Our constant goal will be to integrate our peer's feedback into positive growth and change of our courtroom skills. 

From day one, I am going to be asking each student to write critiques of fellow student's performances. Writing critiques helps you learn from your colleagues triumphs and disasters. When you really listen to what is happening, you will learn something about how to evaluate people (a valuable trait for a trial lawyer).  No later than 6.p.m. Sunday after the class, you'll be posting the critiques your write every week to our class' e-discussion group. Every member of the class will be a member of the e-discussion group. You will receive every e-mail critique filed by other members of the class, just as they will receive yours. You should find the critiques of you to be of enormous help when you review your videotaped performances for the first ten weeks. Each of us is bound to give the others honest performance advice in the spirit of mutual growth. It's entirely up to you to take or reject any particular advice from me or your colleagues.

"And would some Power the small gift give us.
To see ourselves as others see us!
It would from many a blunder free us..."
Robert Burns, Scottish Poet

Try not to harbor resentment against the instructor simply because s/he suggests changes in your courtroom performance. To be criticized after you have labored over preparing one of our problems has to be a bit like having someone sit on a cake you have spent hours cooking.  Part of the job as instructor is to advise you what you did wrong and counsel how you can improve. I will offer suggestions and critiques of your performance.  Advice is not always welcomed. Some of us have fragile egos that bruise easily from criticism by those in a position of authority, even when that criticism is intended to to be wholly constructive. The instructor's critique is intended to improve your skill level. It is never intended as a personal attack. Nevertheless, you may resent hearing it. If you have a sensitive ego, your defensive instinct will be to argue with the instructor when s/he critiques your performance. You may even find yourself disliking the instructor and thinking that the instructor dislikes you because the s/he points out weaknesses in your performance skill level. Try not to allow resentment to interfere with the positive gains that you can make by keeping your mind open to the instructor's comments about your performance.

Your goal in the course should be to get better, rather than to get praise. Your instructor's goal is to help you get better, not win a "teacher of the year" popularity contest.  Your instructor may not follow the "Mary Kay"  admonition to "sandwich each bit of criticism between two layers of praise." Your instructor's criticism may not always be correct, gentle, diplomatic, or sugar-coated, but it will always be genuine and intended only to help you improve your courtroom trial skills. If your feelings are hurt by critique, shake it off. Try not to be defensive. Try not to complain. Try to be thick-skinned, tough-minded, and tender-hearted. Try not to feel the defensive need to explain yourself. Just listen. Feel free to reject the instructor's advice if upon reflection you feel that it has no merit. Learn from your mistakes. [Note: If I see that a student is emotionally resistant to criticism, e.g., tearing up, I will not press the issue; the downside is that the student loses the potential benefit of suggestions that might have improved his or her future performance.]   

This is important -  To be able to entertain a suggestion without necessarily accepting it is the mark of the educated person. When you find yourself getting defensive in the face of honest, constructive criticism by me or your classmates, try to remember these two thoughts -

The one who can listen to advice becomes superior to the one who gives it.
(To profit from good advice requires more wisdom than to give it.)

and

It is the province of knowledge to speak, and it is the privilege of wisdom to listen.

Collaborative Effort: In all that we do, we are working as a group to heIp one another improve our trial skills. In some problems, you will be on one side of the table and a colleague will be on the other. Your constant combined effort in advocating your position will elevate our group learning skill level. In some problems, you will work in tandem with a co-counsel. At the mini-trial stage, you will collaborate and share the work load with a partner. I wish I could tell each of you to relax, sit back, and enjoy the voyage, but I can't do that.  What we can say to each other is, "Welcome aboard. None of us is a passenger on this boat. We are all crew. We are rowing together against the current. The water is choppy. Not to advance is to fall back. Together, we will make it to shore, safer and sounder than we started."

Housekeeping

  • Witness Roles:  Your witness roles are contained on a page in this web site.  There is also a tape in the back of your Assignments book that indicates your witness roles. The roles are in code. The first number is the Assignment Number; the second number (separated from the first) is the Problem Number, and the third symbol, a letter, indicates which witness role (A for the first witness, B for the second) you have in problems with multiple witnesses, e.g., code 9-2B means a witness role in Assignment Nine, Problem Two, second witness.

  • Group Membership:  The class will be divided into two groups - A and B - for the first ten weeks. You are a member of one of the groups. Your group membership is indicated on the web site page indicating witness roles for the first ten weeks. The assignment syllabus in the front of the Assignments book will orient you to your lawyer role (prosecutor or defender) for each problem according  to your group membership, either A or B. If you have a witness role for a problem, you are excused from preparing the lawyer role for that problem only.

  • Clerk:  At the first class, I generally appoint a clerk with power to appoint his or her successor. The clerk will help me with housekeeping matters. I will supply the clerk with evidence labels. The clerk is not excused from being prepared to perform the problems for the week s/he serves as clerk.

  • Everything You Do Taped and Put on Streaming Video Available Within 24 Hour:We videotape every one of your classroom performances. Your performances will typically be available on streaming video within 48 hours. [TIP: When you view a lengthy performance on streaming video, give the stream plenty of time to fully load; then you will be able to move the slide and go anywhere in the performance and  replay that portion at will. If more than one performer is on the stream, you may only want to review your effort.] After you have completed your mini-trial, take a blank DVD to the Instructional Technology Department ( IT - located on the second floor), and they will transfer all of your videoed performances to your blank DVD. As a course requirement, you will be asked to read the corresponding critiques from your fellow students and watch all of your performance ; you will then write a self-evaluation of your courtroom efforts during the first ten weeks and at your mini-trial and place this self-evaluation in your trial notebook.

  • Course Divided Into Two Parts:  This course is in two parts. The ten weeks of problems in the Assignments book comprises the first part of the course. The second part of the course is composed of the trial notebook, the pretrial conference,  and the mini-trial. The first ten weeks are exercises that acquaint you with basic techniques of evidence and persuasion.  You will learn practical applications of the Texas Rules of Evidence, the rules of the courtroom game you will be playing for the next forty years. Note: On Week Seven (jury selection) you will be asked to bring a guest. The last four weeks are devoted to mini-trials. Each class member will be part of a two person defense or prosecution team that will try a case from opening statement through argument. The focus during the mini-trials is on the overall case. This involves formulating a plan of action, investigating your case, preparing and presenting pretrial motions, preparing a trial notebook, and conducting a condensed trial before a jury provided by your classmates. Note: You will be asked to help supply jurors to one of the other mini-trials.

  • What to Wear: It's been said that you are what you wear. It's certain that jurors will form their first impressions of you based on how you look. They may even discuss your looks among themselves. In our class, dress for court on any day when you may be called upon to perform a lawyer role. Now is as good a time as any to start thinking how you want to professionally present yourself in court. I recall that Thomas Jefferson said "In matters of style, swim with the current. In matters of principle, stand like a rock." Of course, Mark Twain also had something insightful to say about dress: "Clothes make the man. Naked people have little or no influence on society." [Disclaimer: I don't pretend any insight into current styles of fashion and dress.] 

  • Your Critique of Your Colleagues as an Integral Part of the Course:  Our class motto should be: As critics, we will leave no "turn unstoned." Seriously though, on the other side of the coin from planning a performance is reflection upon it. Even when you are not up in front performing the problem, I ask you to be critically evaluating the choices that your performing colleagues are making and the consequences of those choices.  Critique and analysis play a big part in this course.  Feedback helps the performer, and it also helps the critic. Like Yogi Berra said, "You can learn a lot by watching." While the exercise is taking place, each of the non-performing class members will write a detailed critique and analysis of the performing lawyer. You may find it useful to use the critique forms at the end of each assignment as a guide. Post your critiques to the e-discussion group no later than 6:00 p.m. the Sunday following the class meeting. I suggest you open a free e-mail account at Yahoo for use in this class. Keep a file containing all of the critiques you wrote and the critiques written about you. You'll need to print them out at the end of the first ten weeks for inclusion in your black "ten week notebook."

  • Grades: About grading, 40% of the grade is based on performance during the first ten weeks; 40% is based on the mini-trial and pretrial conference; and 20% is based on your trial notebook. In grading, I focus on how hard you have worked and whether you learn from your mistakes. I expect you to make lots of errors. If you are making a sincere effort, errors are not a sign of stupidity. Errors are part of the growing process, if you will - building blocks toward competence. An error doesn't become a mistake in my eyes until you refuse to correct it. If you don't try to understand your errors, learn from them and figure out how to improve - only then do your errors become mistakes that count against you. As mentioned above, failure, in my eyes, is not the falling down but the staying down. The course is about hard work, constant training, and intense dedication. I will concentrate my efforts in listening, discerning, understanding, and giving you direction. Over many years, I have noticed that the folks who make the best grades are usually the ones who are willing to follow directions. Four things I consider important in grading are your desire, determination, effort, and skill development. Take care of these, and your grade will take care of itself. You will be allowed to choose whether to receive either the same or a separate grade for the trial notebook as your mini-trial partner. The required contents of the trial notebook are described in the prefatory materials in the Assignments book.

  • Seating and Laptops: For the first class pick a seat anywhere in the classroom. From Assignment Two forward, I will ask members of Group A to sit on one side of the courtroom and members of Group B to sit on the other side of the courtroom. Sit beside a person that you don't know. At some point in the semester I may reassign seats.  When we are conducting class, please don't be having a private whispered conversation with persons sitting near you. If you notice something worthy of comment, put it in your written critique and/or share it with us orally. I particularly appreciate any comments you make during the oral critique. (If you have something to say, please share it with the entire class. If you have nothing to say, do that.)  If you bring a lap top, use it only for class related purposes. [Note: Anyone wanting to use his/her computer during class for any purpose, e.g., playing solitaire or other games, checking email, looking at photographs, briefing cases for other classes, etc., that does not relate to our class needs to see me before doing so or risk losing participation/effort grade points.] 

  • Tardiness: I have tried to build the pathway for you and signpost it so you won't lose your way. But, you must do the walking. If you choose to stray by being absent, frequently tardy, unprepared or  ill-prepared, you won't develop the fundamental survival skills that you'll need when you announce "ready" for trial. None of you want to be one of those "Always Ready, Never Prepared" lawyers who is little more than red meat for the courthouse grinder.

  • Password & Copying:  Some of the pages on the web site are password protected. Please do not share your access password. Content of this web site is owned and copyrighted  by Professor Moses. You are welcome to download any page of the site for your personal use. Otherwise, do not reprint, republish, repost, or otherwise distribute or transmit content or images presented on the CCJA web sites. You may also copy pages from the Assignments in Criminal Trial Advocacy book to the extent necessary to accomplish your work on individual problems.

Last Words

Knowledge is a bit like food. If you aren't hungry for the subject, if you have no appetite for the skill, study provides only short-term benefit. You won't retain what you take in if you feel like you are being instructed by someone you don't know about something you don't want to know.

You don't receive skill. You discover it for yourself in a journey of experience that no one can take for you. A certain delicacy of thought and subtlety of perception comes only by experience. This course can be a good step. But for the course to really work, you need to be motivated. The skill enhancing opportunity you are seeking is for the most part in yourself. Circumstances, luck, and the help of others can make a difference, but your capacity to pass from one step of success to the next is mostly in yourself. So, give it your best shot. If the coursework doesn't absorb you, if it isn't any fun, at least you will have learned that you don't want to wander down the career path marked "criminal law practice."

If you are committed to being a trial advocate, learn your trial skills with an intensity born of the understanding that, no matter how long you practice, no matter how many times you announce "Ready," you'll never be able to entirely master this chosen craft. The plain fact is that 99% of us lawyers live far within our capabilities. Compared to what we can and ought to be, most of us are only half-awake. If you make a dedicated effort, this course can be the stimulant that makes you bright-eyed and bushy tailed.

I agree with the words of Plato: "Knowledge which is acquired under compulsion obtains no hold on the mind." I will not be a fierce taskmaster. I will not drive you like sled dogs. What you get out of the course is pretty much up to you. I do challenge you to become resourceful and resilient. My pledge to you is that I'll do everything within my power to help you make this experience a stepping stone, rather than a stumbling block, to your future as an effective, talented trial lawyer.

                                                                                       
RE Moses


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ASSIGNMENTS
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A student at Cardozo discusses the live client criminal defense program.