Trial advocacy

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,^[4]) most law schools offered little education in advocacy.^[5][6] 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 (NITA).^[7] 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. Nearly one dozen law schools in the United States offer Master of Law (LL.M.) degrees in trial advocacy.^[8] Trial advocacy originally focused on individual actions within the trial, proposing improved juror selection, argument delivery, and direct and cross-examination methods. However, in the 1970s, NITA advanced the concepts of theme and theory as methods of integrating the various components into a cohesive whole.^[9] More recently, litigation strategy has blossomed with the importation of concepts from economic game theory, complexity theory, Gestalt psychology, and the application of maneuver warfare 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.^[10]

The topics commonly encompassed within Trial Advocacy are:

The selection of jurors that will be receptive to the argument the attorney intends to make.^[11]

Presenting a non-argumentative overview of what the jury will see, often in the context of the attorney's theme, theory, and story.^[12]

Eliciting evidence from one's witnesses through non-leading questions. 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.^[13]

Working with witnesses offered by the opposing party who may be hostile or uncooperative.^[14]

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.^[15][16]

The general principles that enable an advocate to make the jurors more receptive to his or her claims.^[17]

In mock trials, students take responsibility for the prosecution/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 in that moot court practices appellate argument and so involves no handling of witnesses or evidence, but instead is an exercise in legal research and oral advocacy.^[18]

The means of organizing a case into a clear and complete presentation.

• Case Diagrams: The attorney charts the elements they intend to prove (or attack) and the evidence supporting each. These ensures the case is comprehensively addressed.^[19]
• 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.^[20]

The means of organizing a 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).^[21]

Advanced strategic skills, based upon psychology and military maneuver philosophy, are generally learned outside the classroom, as few law schools teach them. In fact, academics have criticized advanced strategic techniques for tipping verdicts through means unrelated to the merits of the case. For example, these techniques may cause an unfamiliar advocate 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 an impoverished client stands almost no chance of success against a large firm with more significant resources, regardless of the case's merits.

• 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.^[22] 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 they will be ill-equipped to identify and counter them.^[23]
• Gestalt psychology: This branch of psychology focuses on how things are perceived as a whole instead of how individual components appear. It aids in ensuring the jury (or judge in bench trials) perceives events as the attorney desires. It also offers a way of shaping how witnesses and opposing counsel will perceive the problems an attorney raises for them during the trial. When coupled with game theory, shaping perception allows an attorney to influence or shape the hostile witness or counsel's actions.^[24]
• Game theory: Game theory offers models of how people make decisions. In trial practice, game theory is useful in predicting witnesses' likely actions 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 to increase the likelihood of them making decisions about their responses that improve the attorney's strategic position.^[25]
• 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 their goal.^[26]

• Dreier, A.S. Strategy, Planning & Litigating to Win. Boston MA: Conatus, 2012. ISBN 9780615676951
• Korzen, John Make Your Argument: Succeeding in Moot Court and Mock Trial. New York NY: Kaplan 2010. ISBN 9781607144953
• Lubet, Steven Modern Trial Advocacy. South Bend IN. NITA, 2004. ISBN 1556818866