Malcolm Gladwell and the Art of Trial Advocacy Getting the Jury to the Tipping Point

February 01, 2020

There was much to await forward to when a new textbook on trial advocacy, by two experienced women lawyers,  was released:  new voices, more prominence for women advocates, and [hopefully] the latest in multi-disciplinary insights to teaching and performing the art of litigation.  And the promotional material for Camille Abate'southward and Kathleen Mullin's ADVOCACY EXCELLENCE promised as much, describing it equally the "ultimate trial advocacy text" with "cutting-edge trial techniques and tactics…"  Sadly, this book does not alive up to its cocky-promotion.

Allow me first with the positive.  This is an piece of cake-to-read advancement guide, with some very useful flow charts such as the one titled  "unproblematic structure for a chronological straight examination."  In that location is also a valuable explanation of brain chemistry and how it primes the listener to be receptive to story-telling; and the book's emphasis on story-telling and the tools of primacy and recency is laudatory, essential, and absolutely correct.  The "sample questions for mutual jury selection issues" is a provocative template for how to get venirepersons to reveal potential biases.  In that location is also a useful discussion of chaser movement during direct exam, using changes in location to emphasize points or transitions.

So what's the trouble?  In case after instance, there is hyperbole and inadequate or simply wrong analysis.  To brand the indicate, I listing numerous examples:

• The authors claim that in electric current trial advancement books "story-telling structure on direct is rarely, if ever, taught." Since this is a staple of modernistic trial advocacy literature, information technology is non surprising that information technology comes without citation.  A quick review of advocacy texts on this reviewer's shelf found that theme to be prominent in the current literature.
• The chart "how to create a case theory" omits any consideration of the Rules of Testify, a glaring concern since a instance theory must be predicated on the likelihood of particular facts beingness admissible. To fully prepare a case theory, ane must do a "all-time case," "worst example," and "likely case" assessment of what items of proof will be admissible and then pattern 3 example theories.
• In describing principles for opening statements the volume contradicts itself, offer as a positive instance an opening statement explaining that the case is the effect of "police [who] were too lazy to investigate properly" but so admonishing the reader to never "denigrate…upcoming witnesses." More importantly, the volume maintains that "opening should be an argument" but neither offers a complete (or fifty-fifty fractional) analogy of one nor discusses how to exist persuasive without crossing the line into argument.  [The one proposition – to infuse the opening with "the evidence volition bear witness" prefaces – is no guidance at all.]
• The book fails to give needed communication on how to inoculate jurors to bad facts. Information technology reminds the reader to be certain to do this, but then uses an example where the 'bad' fact is actually spin-able into a good story.  At that place is no illustration of how to deal with a bad fact that is only that – bad.
• Woefully defective when discussing persuasive techniques for the opening statement is whatever mention of language – of creating a picture so articulate that all jurors will share the aforementioned prototype.
• In discussing the permitted use of leading questions on direct examination, the text omits the archetype case, one found in constabulary, of using leading questions for the 'special' witness such as a child.
• On forensics issues, the book misleadingly claims that cell tower data is accurate in tracking a person's whereabouts, when in fact there are serious dispute about this; and more glaringly, when offering "five questions" that the litigator must enquire about challenging forensic bear witness, Advancement EXCELLENCE omits issues of validity of the subject area, the potential bear on of biasing information, and whether the expert is offering testimony that goes beyond what the science really supports, all of which are essential in analyzing forensic testimony.
• The book cites to Malcolm Gladwell and his volume Blink" every bit an authoritative text for the psychology of how jurors will receive information. Gladwell is not the nigh administrative source and in fact has been criticized in scholarship and in judicial writings; and the omission of Kahnemann'south "Thinking Fast And Slow" is confirmation that the authors are not up to par on cognitive psychology and its awarding to the court.
• The book has recurring errors or omissions on the law of Show. In describing the use of learned treatises to cross-examine an expert, it omits the fact that even if the witness is not familiar with the text it may be used for questioning of the gauge judicially notices its status; and almost every example offered of what the book calls "improper [lay] opinion evidence" is in fact proper.
• The book'southward dorsum clarification claims this to be a volume where "[f]or the first time anywhere…law students and lawyers are steered, step-past-step…through contemporary issues not covered in whatsoever text, such equally…social media,…emojis…and trial software…" The claim is audacious and just wrong.  Other books and articles have covered these topics; and Advocacy EXCELLENCE offers one paragraph nearly "emojis in court" with no "step-past-stride" arroyo.
• The nearly surprising omission, across the volume, is the absenteeism of samples – a sample opening argument, a sample closing statement.  The volume offers an illustrative outline for closing, using a hypothetical case; but without a demonstration of the verbatim closing the outline generates, the guidance is inadequate.

So why such a detailed critique?  Law books are expensive, and too few take a lifespan beyond the course for which they must exist purchased.  A trial advocacy text is different – information technology has a shelf-life of years if not decades, so information technology is an important investment.  Care must be taken when professors select such a volume for their courses and students or practitioners determine to make the buy.  For all its insights, Advancement EXCELLENCE has too many flaws and fails to live upwardly to its proper noun and its claims of uniqueness and superiority.

Citation:

Advocacy Excellence: The Jury Trial Camille Abate, Kathleen Mullin (Walters Kluwer 2020)

crittendonwopen1948.blogspot.com

Source: https://law.temple.edu/aer/publication/advocacy-excellence-not-quite/

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