Pretrial Advocacy in the Part-time Hybrid-online FLEX JD Program

 

Here are students in my Seattle  University Law School’s Pretrial Advocacy course arguing a mock motion during the last class of the course. While King County Superior Court Judge Melinda Young presided over some of the arguments - for instance the one shown here, Judge Patrick Oishi presided over others during this Saturday’s event. This is the culmination and a high point of the course for the students. 

My students are participating in S.U. Law School’s FLEX JD program which is designed for people who are working or otherwise occupied during the day.  The FLEX JD program runs for three and a half years rather than the traditional three years, and almost all classes are done online commencing at 6 p.m. with two weekend sessions where the students attend in-person classes at the law school. 

The curriculum for the FLEX JD courses is basically the same as those for regular students. For instance, my Pretrial Advocacy class uses the same text book – my Pretrial Advocacy: Planning, Analysis, and Strategy (w/ Connected eBook with Study Center) – as that used in regular classes. 

The subject matter covered during the course is fundamentally the same but condensed to one class per week rather than two sessions. Learn more about the course by visiting Seattle University Law School’s website.

NEW LAW SCHOOL PRETRIAL ADVOCACY FLEX JD COURSE

 

Beginning this Spring Seattle University Law School will offer my Comprehensive Pretrial Advocacy Flex JD course. It is a 4-credit course. Flex JD courses are designed for students who are working. They are hybrids—for example, my Pretrial Advocacy course involves one synchronous online Zoom session per week running from 6 to 7:30 p.m. and two in-person weekends at the law school. Students in the Flex JD program can graduate in four, rather than three, years.

The curriculum of my course while organized to fit this pattern will cover the same material and experiences that an in-person at the law school course covers. One big difference is that students will be interacting with and submitting work on a very robust Canvas web page. 

The text for the course is my Pretrial Advocacy: Planning, Analysis and Strategy 6th edition, which is being published by Aspen Publishing. 

New Book: Pretrial Advocacy: Planning, Analysis and Strategy 6th Edition

 

Proud that Aspen Publishing will soon be launching Pretrial Advocacy: Planning, Analysis and Strategy 6th Edition which I co-authored with Marilyn Berger and John Mitchell.  The above image shows what the cover will look like. New to this edition are the following:

• Comprehensive organizing system for pretrial and trial
• New material on preparing a witness for trial
• Updated coverage of electronically stored information (ESI) and e-discovery practice
• Advancements in the use of technology to create persuasive visuals for litigation
• COVID impact on pretrial practice with respect to 
• Conducting and defending depositions online
• Mediation by videoconference
• Greater us of written motions and responses

This book is one of the reasons, besides teaching at Seattle University Law School, that I haven't blogged for a while. Probably won't get much blogging done in the near future because we are working on the 5th edition of Trial Advocacy.

Critical Pretrial and Trial Checklists

Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 5th Edition and Trial Advocacy 4th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

CLOSING ARGUMENT CHECKLIST

Preparation

 Preparation begins soon after entry into the case. Counsel should keep notes of ideas for closing.

 Prior to trial, write the closing argument, with final editing during trial. Reduce closing to outline notes.

 Rehearse closing argument. Just like opening statement, commit concluding remarks to memory so they will flow smoothly.

Content 

 Case theories should serve as guides for planning closing.

 Regarding the legal theories, jury instructions, among others, serve as the core around which to craft closing argument:

 Elements of the claim or defense,

 Burden of proof,

 Issues in dispute, and

 The other side’s case theory.

 In arguing the factual theory, counsel should use jury instructions that pertain to crucial facts, as well as a story embodying those facts.

 The case theme should be incorporated into the closing.

 Closing should meet the other side’s case theory and attacks.

 Juror beliefs and expectations that could be detrimental to the case should be identified, met, or distinguished from your case.

Length

 Length of closing should be suitable to the complexity of the case, and should not run overly long.

Aristotelian Appeals 

 Closing should make all three appeals: logical, emotional, and ethical.

 Persuasive language should include:

 Words with connotations, and

 Rhetorical devices, such as postponement, concession, anti¬thesis, metaphors, similes, analogies, and rhetorical questions.

Structure 

 The closing should begin by seizing the jury’s attention.

 The body of the closing should be well organized, emphasizing the strengths of the case before dealing with case weaknesses or the other side’s attack. 

 The closing should conclude by referring to the theme and reasons for the requested verdict, thus motivating the jury to make the right decision.

 Rebuttal should refute the other side’s arguments and finish strong.

Bench Trial 

Counsel should:

 Be prepared to answer the judge’s questions during closing.

 Not spend an inordinate amount of time explaining the basic law in the case. 

 Assist the court in making findings of fact and conclusions of law.

 Make logical and ethical arguments. Do not seek to appeal the judge’s emotions, except as telling of the facts evokes emotion.

 Be concise and to the point.

 Be candid, accurately stating the facts and law, and conceding what should be conceded.

Delivery 

Counsel should:

 Project sincerity;

 Avoid distracting behavior, such as pacing back and forth;

 Maintain eye contact with jurors or judge;

 Deliver the closing with a minimal outline;

 Position her body to hold the fact finder’s attention; and

 Make purposeful movements.

Counsel should use trial visuals effectively:

 Ensure use is permissible,

 Make visuals persuasive,

 Position equipment and visuals appropriately, and

 Have a backup plan if equipment malfunctions.

Ethical Boundaries

 Counsel should not state a personal opinion.

 Counsel should not venture outside the record.

 Counsel should not introduce irrelevant matter.

 Counsel should not invoke the golden rule.

PRETRIAL ADVOCACY COURSE GOES ONLINE—PART III

 

Pretrial Advocacy Online Part I

Pretrial Advocacy Online Part II

PRETRIAL ADVOCACY COURSE GOES ONLINE—PART I

Can you learn pretrial advocacy online? The answer is “Yes, Oh, Yes—you can.” Before the pandemic, I began taking a course at Seattle University’s Center for Digital Learning and Innovation (CDLI). I decided to take the classes because Seattle University Law School, where I teach Pretrial and Trial Advocacy, Essential Lawyering Skills and Visual Litigation and Today’s Technology, decided that, due to declining enrollment in its part-time students’ night classes, it would drop those classes and instead try something new—offer courses online to part-time students.

Originally, I was planning to teach a Visual Litigation course online during the Summer of 2020, which I did (it was so popular that it had two sections). But, one thing led to another, and now I’m teaching a Fall 2020 Pretrial Advocacy course online as well. When we entered into virus isolation half-way through the Spring semester, I had to convert my Pretrial course into an online one for the remainder of the semester.

The Comprehensive Pretrial Advocacy course is perfectly suited for this approach. Here’s a description of what the course entails, and you can see why it should prove to be a great way for law students to learn pretrial advocacy.

Using mock criminal and civil cases as a context, students develop patterns of thought and skills for the real-work practice of law. Activities will include, among others: case theory and theme development; forging an attorney-client relationship;  interviewing, counseling, negotiation, oral advocacy, and drafting of pleadings, discovery, and motions. Problem solving, decision making, and the professional role of the lawyer are emphasized. Alternatives to trial, such as mediation, are explored. Pretrial Advocacy allows a high level of student participation in discussion and role-play.

This course uses Pretrial Advocacy: Planning, Analysis, and Strategies as a text and concentrates upon pretrial advocacy in the context of both civil (Summers v. Hard) and criminal (State v. Hard) litigation. At the successful conclusion of this course, students will have acquired the skills that are essential to effective pretrial advocacy, including, among others, how to do the following:

1.    formulate a case theory and theme;

2.    forge an attorney-client relationship;

3.    interview and counsel a client;

4.    interview witnesses;

5.    develop and manage a case;

6.    visit the scene;

7.    negotiate;

8.    engage in alternative dispute resolution;

9.    take and defend depositions;

10. engage in discovery;

11. argue a motion; and

12. draft these legal documents: a complaint; an answer; interrogatories; requests for production; requests for admissions and either a motion or response to a motion.

In the next article, we can take a look at the projects, discussions and presentations that make up the online Comprehensive Pretrial Advocacy course.

See Pretrial Advocacy Goes Online - Part II

LAW SCHOOL BAD HABITS: NUMBER 2—MISSING THE CORE MESSAGE

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.

LAW SCHOOL BAD HABITS: NUMBER 1—BEING A POOR COMMUNICATOR

Bryan Garner

Law schools teach three bad habits—ones that are particularly deleterious to pretrial and trial advocates. These three dreadfully bad habits can be broken,  and the means to breaking them are covered here and, in more depth, in Trial Advocacy: Planning, Analysis, and Strategy and Pretrial Advocacy: Planning, Analysis, and Strategy.

I’ve previously discussed this awful habit of being a lousy communicator. Nevertheless, in this series, the subject is worth revisiting. Law schools should produce professional communicators, but quite to the contrary they graduate lawyers who are poor communicators. Some are so bad they can and often do put a jury to sleep. Law schools should focus on producing professional communicators – lawyers who are effective writers and speakers. However, Bryan A. Garner’s in his column for ABA Journal entitled, “Why Lawyers Can’t Write” subtitled: “Science has something to do with it, and law schools are partly to blame” states:

“While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality, and they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments.” ABA Journal (March 2013, p. 24).

Jim McElhaney

Jim McElhaney, advocacy instructor, ABA Journal contributor for 25 years, and also like Garner an ABA columnist, put it this way:

“Law school is as much obscure vocabulary training as it is legal reasoning. At its best, it can teach close thought and precise expression. But too often law school is reverse Hogwarts – where Harry Potter trained to be a wizard – that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity.

 .
“So we lard our speech and writing with words and phrases of awkward obscurity and rarely have anything to do with legal precision but that unmistakably say, ‘This was written – or said – by a lawyer.’

“Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

“And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to be effective communicators.” ABA Journal (September 2012).

Correcting this habit isn’t easy. It requires a good legal writing program, such as Seattle University Law School’s currently ranked number three in the country, that can teach students how to write clearly and effectively. Further, professors should do what Garner suggests and give students feedback on the substance and style of their submissions.

Coming soon: Law School Bad Habits 2 and 3.

FEATURED PRETRIAL BOOK

Seattle University Law School has featured the fifth edition of PretrialAdvocacy: Planning, Analysis, and Strategy in its Our Scholars publication.

Pretrial Advocacy provides an excellent conceptual and practical foundation for pretrial litigation for trial lawyers, teachers and law students. This new edition is updated and has expanded coverage of both criminal and civil pretrial practice. The focus remains on federal and state litigation. Professional responsibility and civility are emphasized throughout the text. Checklists of skills, techniques, standards and ethics appear in each chapter.

Underpinning the Pretrial Advocacy book is the Confucian methodology of “I hear and I forget. I see and I remember. I do and I understand.” First, each of the Pretrial Advocacy’s fourteen chapters offers a comprehensive explanation of a core litigation activity, from client interviewing, case theory development, drafting pleadings and discovery requests, motions, pretrial preparation through Alternative Dispute Resolution and pretrial readiness conferences. Additionally, each chapter both covers ethical and legal boundaries as well as provides a checklist for the particular pretrial activity under discussion.

Second, Pretrial Advocacy enables the students to see and remember. With the streaming videos provided on the password protected website, students can see and retain the information. For example, they can watch experienced trial lawyers take and defend a deposition and also use the deposition at trial.

Third and most importantly, students can learn litigation skills by performing them. Unlike any other litigation books and materials on the market, Pretrial Advocacy comes with a complete set of materials, including 79 role-playing assignments, two case files (complete with exhibits, witness statements, depositions, and so on) an Actors’ Guide for the witnesses, and a Teacher’s Manual.

New in this fifth edition are such topics as cultural competency essential to effective pretrial preparation and litigation and the skills required to collaboratively work in teams and strategies for conflict resolution

-->