Law schools teach three bad habits—ones that are particularly deleterious to pretrial and trial advocates. These three dreadful habits can be broken, and the means to breaking them are covered here and, in more depth, in the Trial Advocacy: Planning, Analysis, and Strategy and Pretrial Advocacy: Planning, Analysis, and Strategy books. The first bad habit is being a poor communicator.
The second bad habit is that lawyers find it impossible to find the core message of a case. In Winning at Cross-Examination: A Modern Approach for Depositions and Trials, Shane Read explains that they have this habit because they developed it in law school, as follows:
“Almost every lawyer fails to find the bottom-line message for his or her case because our law schools and legal system teach us the wrong skills to accomplish this task. It is ironic, but law school is a terrible training ground for trial lawyers because it rewards students who focus on details at the expense of not rewarding those who focus on the main point. From the first day of law school, professors reward the highest grades to students who can spot the most issues in an exam question and write the longest answer with the most facts in it. In classroom discussions, the student who sees the complexities in a judicial ruling is rewarded instead of the student who clearly articulates the simple holding of the case.”
How can the habit be broken? A solid trial or pretrial advocacy class can drive home the importance of having a core message and teach students how to craft it. In both Trial Advocacy and Pretrial Advocacy, we focus on how to develop a case theory and then be able to encapsulate it into a case theme. As we put it in Trial Advocacy, “First rate themes are a lawyer’s treasure. The theme captures the case theory and distills it so that it will be memorable and sway the jury. It is the bridge between the factual theory and the jury’s human experience and understanding. The theme can be a word, a phrase, an analogy, or another devise that vividly describes the case. The theme can be repeated and become the structural glue holding the case together throughout the various stages of trial from opening through closing.” Law student will be able to break the habit of not being able to find the bottom-line message if they take a course that teaches the importance of finding the core message and how to craft it.
Coming soon—Bad habit number 3.