There I stood in the well of the packed courtroom. Cameras focused on me, the culmination of a career in court, weeks of preparation, editing, and practice--it was the moment that an oral advocate trains for. I knew the substance of my argument, and I had detailed facts to offer, but how would I deliver it with impact? In the face of such density and pressure, how does one convince a diverse group of people, who know that you are trying to persuade them, to move together in one direction? It might have been easier if I had more information about each of them, about their biases, their tendencies, their lives, their feelings. But I had very little. At this moment, when I had an audience and observers waiting expectantly, how would I tell a persuasive story that would save the life of the trial?
So I began my Donahue Lecture at Suffolk university Law School. I aimed to emphasize the importance of advocacy at trial. I told its story. I showed it with multimedia. I interacted and got audience feedback. I pulled heartstrings and imparted knowledge. I did not try to be exhaustive, but I had a point: to make the case that we need to update trial advocacy. I argued why it is critical that lawyers, students, and professors--as well as judges, legislators, and corporate clients--each celebrate the importance of the trial. It is not a zero-sum game. The craft deserves excellence, and those who excel command a premium. I further argued that trial advocacy has fundamentally changed because of developments in science, technology, and the changes in the practice of law itself. What we know about how people process information and how to connect with them has evolved. Trial advocacy must evolve in light of these developments. Finally, I shared some thoughts on what actually works to change minds in a courtroom, an appreciation that each piece of information can generate belief in a fact or a feeling, a prominent role of emotional intelligence, and framing information in ways that are consistent with our themes. Through adaptation, the advocates of this century should thrive and not just survive.
Improving Advocacy's Importance Can Save the Trial
This is a story born of crisis. Although the volume of litigation has increased, jury trials in America are endangered. (1) The reasons are many, but none are more important than outcome predictability and litigants' budgeting of risks. (2) In an age where the sheer volume of cases has increased, there are several pragmatic incentives for litigants and courts to keep the wheels of justice moving efficiently, if not transparently. (3) Ultimately, while society may be no less interested in justice, simple economic theory alone can threaten the existence of trials as we know them. (4) Trials cost money and increase risks in an age when society seeks to find ways to mitigate these risks.
The Legal Landscape Has Changed
While litigation increases and the number of trials decreases, the volume of lawyers in America is greater than it has ever been. (5) The focus of legal education has largely been on substantive areas of law and less on the art of trial advocacy, with very few students getting practical, stand-up advocacy experience before they leave law school. In short, there are fewer lawyers with meaningful trial experience, and it is harder for lawyers to gain that experience upon graduating law school due to the current lack of trials. (6) The trial lawyer has become a vanishing species. (7) It is also harder to get trial experience regardless of your education. There is very little mentoring, and lawyers have to be more aggressive to get trials, often facing risks surrounding their professional ethics, finances, and future career opportunities.
But numbers alone do not tell the story--society changes over time, affecting courtroom presentation and the utility of law. This Article asserts that at trial, the lawyer can make the difference and that their persuasiveness can transcend the hand they have been dealt. When I first became a trial lawyer, I experimented with various styles in order to connect with the jury. I tried to present through different personas--I even tried different accents. (8) I remember one case in which I intentionally dropped every "r" and elongated every vowel, so that I might appeal to a rural Massachusetts jury. I didn't.
I lost trial after trial during that time. I learned a few things, though, including that ad hoc social science cannot become a trial strategy, and that using any voice (figurative or not) other than your own is dangerous. Since then, I observed others at trial and studied what worked for them. Finding my own contemporary voice, rather than the old one that I thought they wanted to hear, was the first step in my personal evolution as a trial lawyer. I could not persuade anyone effectively until then.
Technology has fundamentally changed the practice of law. More justice, but less trial action, has come from such influential innovations as word processing, database management, and online legal research. Additionally, complex innovations such as litigation software, DNA analysis, and computer forensic work, often make cases less likely to go to trial.
Technology has also shifted how people consume information in an information age, and by extension, how they expect to consume information from trial advocates. Not long ago, the Internet did not factor into how average jurors learned anything; now, the Internet and social media are perhaps the primary ways most jurors gain knowledge. The information access channels are different from a generation ago, in kind, depth, and voice. They may even involve different parts of the brain. (9)
We now consume media from whatever source we wish rather than a homogenized network or newspaper. We are frequently overloaded with information, so we dig only as deeply as we wish to dig, we usually only look where we want to, and we no longer need to remember information we can search for when we want to. We now view multiple sources of media, choosing those sources that most suit our own preferences and prejudices from the marketplace of articles and opinions. Increasingly, the accuracy of this information is becoming less important. (10) We also increasingly socialize our reactions to information and seek feedback from our social networks in real-time. This also makes it more likely that jurors, like the rest of society, are apt to become more entrenched in extreme beliefs they find virtually.
Changing Expectations of Consumption
All the while, popular media sets expectations about what should happen in a courtroom with respect to lawyers and evidence, a phenomenon sometimes called the "law and order" or "CSI effect." Similarly, technology has made an unfathomably voluminous amount of information available to trial lawyers, such that adequately winnowing down such huge data has become harder to do, not to mention more time-consuming and expensive. Distilling a massive investigation or case into digestible pieces for a judge or jury to consume easily is a challenge. In this context, mining datasets for meaningful conclusions is becoming a precious skill, which itself increasingly relies on artificial intelligence and algorithmic pattern recognition.
Ironically, while technology has improved, there has been a dumbing down of technical understanding in society, especially of scientific concepts. Some trial lawyers routinely try to simplify their cases so that a child in grade school would understand them. These smaller, more digestible pieces of content have become a form of expression unto themselves. As described below, these quanta of information, logical and emotional, develop individuals' opinions about issues. Another unique aspect of social media is that it offers constant feedback, which creates new social pressures and identity issues related to expressive conduct.
American juries are no longer largely homogenous groups. Due to the diversity of lawyers, judges, and jurors, the challenge of finding a common morality and life experience is much more difficult in the modern day, and the results are less predictable. This is not the jury pool that Clarence Darrow might have had. (11) Jurors process information based on their widely varied perspectives. Consequently, the trial lawyer's narrative has to be that much more universal.
Those cases that do go to trial are intensely watched in the information age. While in some jurisdictions there are cameras in the courtroom, for the most part, pundits and media spin the events taking place in the courtroom to the Internet and beyond. My last trial was live-tweeted by an army of reporters. Another trial was blogged about so much that I can review which ties I wore simply by reading the archives.
Success in such a public forum might enhance a career, but the risk of failure can be devastating. The Internet does not forget. More fundamentally, trials are incredibly expensive, and it is increasingly difficult for corporate clients to accurately assess the odds and risks associated with their litigation-related investment. Therefore, trial lawyers, as well as their clients, have long-term economic reasons, for parochial and public relations purposes, for being more selective about which cases that they posture toward trial.
Judges and juries have grown accustomed to consuming information through video, sound bites, images, and self-directed web browsing, rather than the detached arms-length process of trial presentation. (12) Jurors expect to see well-curated multimedia presentations, and are less prepared to connect with the people in the courtroom. The time may be near when jurors can navigate evidence for themselves, at their own pace and convenience using hand-held technology from their juror chair. Although this may make it harder for a trial advocate to create a...
Evolution of the trial advocate: from Quintilian to Quanta in the contemporary courtroom.
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COPYRIGHT GALE, Cengage Learning. All rights reserved.
COPYRIGHT GALE, Cengage Learning. All rights reserved.