translating your attitide re criminal trial skills development
into courtroom persuasion
Criminal Trial Advocacy Training
copyright © 2000 ray moses
all rights reserved
The essence of knowledge is, having it, to apply it.
We learn from experience. To learn from it ,
we must undergo it and do something with it.
The trial skills we will know best aren't the ones we've been taught.
They are the ones we have taught ourselves by trial and error.
The purpose of combat is to win,
which means that one must defeat the opponent.
"The cat in gloves catches no mice."
Our glory doesn't consist of never falling -
but in rising every time we fall.
How you practice is how you play.
We are the image we present to the world.
"What we hope to do with ease, we must first do with diligence."
"My clients don't want justice. They want their freedom."
(*IMO: The most effective criminal defense lawyer in the twentieth century.)
A typical criminal defense lawyer tells you how he looks at his job.
[Would you be comfortable with this sort of job outlook?]
(1 - I know nothing about this Youtube speaker who labels himself a "warrior.")
In the courtroom, the opposition will attack in one of two situations:
(1) when you are ready for them or
(2) when you are not ready for them.
No one is afraid to do what he is confident of having learned well.
Criminal trial advocacy is a game of luck.
The more you practice, the luckier you'll get!
First, you have to learn the rules of the game.
Then, you have to play better than your competitors.
The jury is the “canary in the mineshaft; if it goes, if our people lose
their inherited right to do justice in court, other democratic institutions
will lose breath too.”
Our individual liberties in the Untied States of America depend on courts...
and courts depend on the eloquence of the lawyers
devoted to safeguarding those liberties.
"To no one will we sell, to no one will we refuse or delay,
right or justice."
American trial advocacy focuses on contest winning. You first learn this in law school if you participate in trial advocacy competitions. It is quite common for successful law schools to boast of their impressive record of wins in the national trial advocacy contests that pit competing schools against one another. Indeed, there is great competition to be listed in the latest US News & World Reports' national rankings as one of the best schools for trial advocacy training. The emphasis on winning that begins in law school carries over into the practice. The famous defenders are the ones who win their cases at trial, despite the fact that the media and public-at-large believe that the defendant is clearly and unmistakable guilty.
To be a professional criminal trial advocate you need: (1) knowledge of law and procedure, (2) common sense, (3) a sense of fairness and integrity, (4) dedication to the criminal justice process, (5) thorough preparation, and (6) skill in applying the applicable law, procedure and rules of evidence in the context of the facts of your case. Skill at trial does not necessarily mean an effort to reveal truth. Sometimes strategic and trial skills are employed to suppress information and to put a spin on the story. Prosecutors and defenders attend advocacy skills training courses to groom their performance skills. Jury members are selected, sometimes in company with professional jury consultants, with an eye toward the jurors' receptivity to the lawyer's theme and theory of the case. Relevant evidence is excluded because it does not comply with rules of evidence or procedure. Witnesses are prepped to be persuasive. Openings and jury arguments rely on forensic speaking ability and performance technique. Like it or not, it's the way the game is played in American trial courts.
My goal in teaching criminal trial practice is to help you learn how to "outlawyer" the opposition in a professional way. If you expend the effort that I ask of you, you will expand your repertoire of trial skills and you will gain a competitive edge in trial over your less skilled opponent. Skills are developed by practice. We learn to do things by preparing to do them, doing them, reflecting upon what we have done and correcting our mistakes the next time we perform the task. That is what the skills building portion of our course is about - preparation (readiness), performance (execution), analysis (evaluation), and correction (perfection).
Keep in mind that the reason why we practice the techniques in our assignment book is to be able to employ them in real cases. We prepare by practice. The lesson is that, in the real world, those of us who fail to prepare should prepare to fail. For those who succeed, success is not much more than proverbial "preparation meeting opportunity."
On the issue of being ready, I'd like to remind you of the story (expanded metaphor) that the late George Allen, famous NFL football coach, used to tell his players. This story illustrated Allen's philosophy for success in athletic contests.
"Every morning in Africa when the sun comes up, a gazelle wakes up.
That gazelle knows that it must run faster than the fastest
lion or it will be killed and eaten.
Every morning in Africa when the sun comes up, a lion wakes up.
The lion knows that it must run faster than the slowest
gazelle or it will starve to death.
So, it doesn't matter whether you are a gazelle or a lion,
when the sun comes up, you better be running!"
The same message could be used as a mantra for every lawyer who wants to achieve some level of greatness in the trial bar. When the sun comes up, you better be running.
The idea behind practice training is to equip you to act and react, knowing when to employ a trial technique and when not to do so. You practice to develop and hone your skills. Leaving things to chance will deprive you of the joy that comes from executing your plans successfully in trial and, of course, you will lose cases that should have been won.
Although the opposition in criminal trials is the adversary not the enemy, courtroom clashes are contests that are similar in many ways to combat. The weapons are words. The prosecution attacks the defense. The defense defends, but it also must fight back. As a courtroom warrior, whether prosecutor or defender, you can only fight battles the way you practice in basic training. If you fool around and goof-off in practice, you'll never have the right attitude to employ your trial skills when the real case comes along.
In a contested trial, you must act ethically and with civility toward opposing counsel, but you should not be overly concerned with the feelings of the opposition. The opposition is not concerned about you. Many prosecutors view defenders as doing the devil's handiwork, serving clients who have caused demonstrable harm to society. An effective prosecutor girds his or her loins and comes to the courtroom to do battle - to slay the dragon, i.e., the defendant. Prosecutors flourish by aggressive attack. Successful defenders learn to attack the attack, i.e., to go meet the enemy rather than taking refuge in a rope-a-dope defensive stand, taking everything the opposition dishes out and hoping to still be standing when the final bell rings. Defenders must stay on the offense, even when the defensive theory is reasonable doubt. Why? Someone suggested that it's for the same reason that the pilot must keep the engines running when the plane is already in the air; if you turn the engines off and try to coast on a claim that the prosecution failed to prove its case, chances are you will crash and burn. The point is - don't sit around and let things happen to you in the trial court. Instead, go in there and happen to things. Being aggressive doesn't mean being so confrontational that you've got to be held down with tent pegs. Attacking does not mean rushing headlong into an overwhelming situation. You learn when to attack aggressively and persuasively, how do it with commitment and communication, and where to aim to hit the vital spots of the opposition's case.
Learn that your case must have a theory just as an apple must have a core. Learn that your case must have a theme just as an orange has a skin, infusing the flesh with its zest and essence. These two truths become particularly apparent when in pretrial you ask yourself "What is my case about?" and "What makes my case appealing to a jury?"
Think in terms of going forward and succeeding in your courtroom endeavors. You are a performer - a charmer of juries. You don't simply lead your jurors to your waters of truth; you've got to gently bridle them, slip onto their backs, and guide them to the trough, making certain along the way that they develop a powerful thirst.
Put your heart into your efforts. To get your money's worth from this course, put part of yourself into the act of practicing the trial techniques in the assignment book and the how-to-do-it criminal practice manual that I have written for you. And never forget that our approach is fourfold:
Prepare (Get Ready)
As a trial lawyer, the less obvious you are in performing trial techniques, the more effective you will be. The idea is to eventually become one with the skills and techniques you have mastered. Only with practice will you grasp the power of courtroom techniques and the way your trial skills can be used to advantage.
We learn simple skills and techniques before attempting advanced ones. Things are difficult before they become easy. At first, in order to master the orthodox approaches, you must be willing to follow the instructions in the assignment book and the monographs. As your skill level matures, you will learn how to execute more sophisticated unorthodox techniques.
We will work in measured time to allow ourselves to gain some mastery of trial skills, but also so we can understand what we are trying to accomplish in the courtroom.
This training program has proved itself over and over again for over thirty-five years. It provides a pathway for those individuals who want to meet the challenge of mastering courtroom skills. It allows you to prove you have the "right stuff." It's simply a matter of determination, commitment, and effort - in short, your willingness to strive to make yourself a better trial advocate.
The trial practice courtroom is our petri dish. We will experiment. We will stumble in our efforts to gain skill in our craft. We will fall and rise to try again. We will learn from our mistakes. We will try not to repeat them, but we will surely make some of them again. We will get better each week. Our strength won't consist of never falling - but in rising every time we fall. Failure is not the falling but the staying down. And about those mistakes ... we make them here, so we won't make them when the stakes are real.
FINAL THOUGHT: My role as your guide is to help you train yourself to be "armed and dangerous" in the courtroom. I have tried to flag the path so this rigorous skills training can be an enjoyable and worthwhile experience. I want you to feel good about "exercising." One thing I can promise you - what we will be doing in this course will help you gain confidence in your ability to be a successful, ethical, effective courtroom lawyer.