A Critique of a Critique....
Updated: Apr 8, 2020
I read with interest the review of our textbook, Advocacy Excellence: The Jury Trial, on the Temple University Beasley School of Law’s “Advocacy and Evidence Resources” page. (https://www2.law.temple.edu/aer/) While we welcome all criticism and critique so that we can improve our future works and other editions of this text, we must take issue with many of the criticisms identified in this review.
First, the premise of Advocacy Excellence: The Jury Trial is that trial lawyers can win hotly contested cases, instead of having to settle every time, using the methods in this book. While pleas and settlements will always resolve the majority of cases, there are times to fight - and too many times lawyers give up out of fear. We reject this outcome and seek to revive the trial process. Thus, this textbook emphasizes the practice and not the theoretical underpinnings of a trial. While theoretical underpinnings are very important, critical in fact, they are the subject of countless hornbooks on evidence, on psychology, on constitutional law, and on the vast expanse of case law. No trial advocacy book can adequately cover them, nor should one try. The focus must be on preparation, skills, and trial strategy.
LAW SCHOOL THEORY vs. PRACTICE/EXPERIENTIAL LEARNING
The reviewer: “More importantly, the book maintains that ‘opening should be an argument’ but neither offers a complete (or even partial) illustration of one nor discusses how to be persuasive without crossing the line into argument.”
Our response: The worry about “crossing the line into argument” is theoretical and unwarranted. In my 35+ years of trial experience, I have never been stopped from arguing on opening because, in actual trial practice, lawyers do not object to argument in an opening statement. Why? Because they do not want the jurors to think they are afraid of the evidence or of their adversary’s characterization of the evidence. In the very rare instance when a lawyer makes this objection, the judge turns to the jury and mildly says, “What the lawyers say is not evidence.” This exact point is made in the second paragraph on page 128 of the textbook. And there are three illustrations of it on pages 128-129 in the box entitled “Is This Argument?”
The reviewer: “In discussing the permitted use of leading questions on direct examination, the text omits the classic example, one found in law, of using leading questions for the ‘special’ witness such as a child.”
Our response: Why is this a “classic” example? In my 35+ years of trial experience, with many child witnesses, I have never objected to certain tailored leading questions for a child on direct. Concern with child testimony is not on direct, it is on cross. How to cross a child witness is the hard part. The chapter on direct examination excludes this “classic” example because it is not an issue that will trip up the lawyer doing the direct examination. The direct chapter is concerned with issues that will trip the lawyer up. Cross is the rub. Cross is where law students and lawyers need direction and skills training with regard to the child as a witness. That training is in Chapter 10, Crossing Special Witnesses, page 246.
The reviewer: “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 if the judge judicially notices its status.”
Our response: The practical fact of the matter, based on my 35+ years of trial experience, is that no judge will contradict an expert who says that the treatise you are holding is not authoritative. If the expert will not give it to you, and you turn to the judge and say, “I ask that the court take judicial notice of this text as an authoritative text,” the judge is going to say, “I’m not the expert, counselor. I have no idea if that is an authoritative text and I am certainly not going to go out on a limb and take judicial notice of it because you want me to.” If the reviewer is contemplating a motion in limine on this issue ahead of trial, this is unwise because you are then broadcasting to your adversary that there are things in the so-called authoritative text that contradict their expert. As a practical matter, you are helping your adversary prepare the expert. So, no. We are not practicing evidence in a vacuum. We operate in a courtroom with tactics and strategy, not legal theory that might end up putting you in a bad position at trial.
The reviewer: “The most surprising omission, across the book, is the absence of samples – a sample opening statement, a sample closing argument. The book 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.”
Our response: In 35+ years of trying cases, no sample opening or closing ever helped me open or close. Every single case rests on its own facts. Every single lawyer has his or her own way of speaking, arguing, and framing issues. Any student or lawyer who copies or adopts someone else’s words, tone, persona, or arguments will reflect a lack of authenticity and lack of personal commitment to the jury. And they will likely lose their case, since any sample, no matter how spectacular, is based on a particular set of facts that are not the facts at issue. For these reasons, we abjure samples. We want students and lawyers to think on their own. I always recommend that students watch trials, because you learn from seeing trial lawyers in action. You do not learn from “samples.” Better to provide an outline and let the student or lawyer use their own words and authenticity.
Chapter 3, Creating a Case Theory –
Referencing the flow chart at the end of the chapter, the reviewer states that the chapter “omits any consideration of the Rules of Evidence” in evaluating what facts would be admissible at trial. Yet the very first step taught in the chapter is to identify and list the undisputed facts because the entire case theory must be premised upon facts that are undisputed by either side and hence unlikely to be objected to.
We point the reviewer to Chapter 2, Preliminary Case Analysis, which teaches how to create a proof matrix to analyze legal sufficiency or insufficiency. Chapter 2 also deals with preliminary analysis of forensic evidence. And Chapter 4 (Trial in a Box – Mobilizing the Case Theory) teaches how to assess the evidence after creating the case theory, using a more detailed proof matrix that specifically identifies the evidence to be used in support of each party’s theory, and any arguments for or against its admissibility.
Chapter 6, Crafting a Winning Opening -
Bad Facts: The reviewer chides the authors for not illustrating how to inoculate a juror to bad facts during opening, and asserts that sometimes facts are just “bad.” We strongly disagree: Every bad fact is capable of being neutralized or seen in a different light at trial. The example used in the textbook – the trial of Casey Anthony for the murder of her daughter, which ended in an acquittal – demonstrates the inoculation of a devastatingly bad fact: the failure of Casey Anthony to report her daughter missing for 31 days. Yet the reviewer opines, “[T]he bad fact was spin-able into a good story” and does not credit the defense attorney, Jose Baez, for spending hours, days, weeks, and months trying to deal with and inoculate Casey’s failure and the lies she told about it. Now, after Jose Baez gutted it out and worked hard at brainstorming how to “spin” that devastating fact, it is spinnable!
Persuasive Language: The chapter, according to the reviewer, is deficient because it does not discuss persuasive language. If one reads Chapter 3 on Creating a Case Theory, then voila! Chapter 3 goes through language choice painstakingly and thoroughly, including a Word Scale to illustrate the nuances of different words. The discussion and teaching is in Chapter 3 and not Chapter 6 because persuasive language is developed when creating your case theory and must be carried through your voir dire, opening, direct, cross, and closing. Language is not created at the opening argument phase but much earlier when the case is being developed during theory creation. To be effective as a persuasive tool, the words you choose must flood the entire trial.
Chapter 7, Direct Examination -
The reviewer claims the text "erroneously" states that storytelling structure on direct examination is rarely if ever taught, saying (without citation) that it is "a staple of modern trial advocacy literature.” In fact, no textbook teaches our method. The well known Mauet textbooks talk about storytelling on direct but within the context of a chronological structure. Every trial advocacy textbook that I have read talks about direct examination as a chronological exercise, and the reviewer cites to none who use our method. To understand the technique, one must read the chapter; perhaps pressed for time, this was not possible. I recommend the reviewer go back and then compare our technique with other texts.
Alleged Error on Forensic Evidence -
The criticism states: "[T]he book misleadingly claims that cell tower information is accurate in tracking a person’s whereabouts..." The book never makes this claim! Not only is that sentence missing from the entire text, there is absolutely no discussion about the accuracy of pinpointing, through cell phone triangulation, a person's location.
Rather, in Chapter 1, Investigation of the Facts (another area not found in most trial advocacy texts), we list some common electronic tracking devices, including cell phone tower pings, and state, "Through the tracking of cell phone tower sites, which are accessed when anyone makes a phone call or sends a text on their cell, you can track the movement of a witness on a particular day, days, month, or months..." This is modern forensic evidence, sought by both sides during investigation and frequently used in today's trials, to track someone's path and direction at a particular time. The implication that we conflated GPS data with cell tower triangulation is wholly unfair and untrue. This use of cell tower pings is very common - indeed routine - in today's trials.
Social Media Evidence -
The reviewer: "The claim [that our textbook covers contemporary issues such as social media evidence for the first time in a trial advocacy textbook] is audacious and just wrong. Other books and articles have covered [social media] topics; and ADVOCACY EXCELLENCE offers one paragraph about “emojis in court” with no “step-by-step” approach.
Our response: First, Wolters Kluwer reached out to us to write this textbook because no other author writing trial advocacy texts knew anything about e-discovery or social media as evidence. Most of the authors of other trial advocacy texts have not practiced since 1990. There is a great deal that has gone on since then! There may be books that cover social media topics, but they are not trial advocacy texts.
In Chapter 14, Introducing Evidence at Trial, we direct the reviewer to the section on Electronic Evidence, pages 356-361. There, the reviewer will find the step-by-step instruction on how to admit (1) text messages, chat room or instant messages, (2) emails, (3) social media pages, and (4) websites and computer downloads. The box highlighting "emojis as evidence" notes that this is a new and novel issue, and directs the reader to check out the technology blog run by Professor Eric Goldman of Santa Clara University School of Law which, among other things, tracks all cases that deal with the use of emojis as evidence. Emojis are a new and novel area in which the foundation issues are still unsettled. But the how-to guide for admitting evidence, on pages 365 and 366 of the chapter, gives students and lawyers the questions for social media evidence, which can be adapted to emojis. In addition, there is an entire chapter (Chapter 15) on "The Role of Social Media as Evidence."
I conclude after reviewing the review that the reviewer feels that our textbook is not "scholarly" in the sense of focusing on substantive law and legal theory. Yet it is stuffed with the law of trial practice, including matters not often addressed: preserving the record for appeal (Chapter 13), advocacy during jury deliberations (Chapter 16), and courtroom dynamics (Chapter 12). We wish to instill confidence and passion in students and up and coming trial lawyers, giving them the practical tools they need to successfully and satisfyingly advocate for the great causes of our day, and for the persons who need us in their corner.