The Advantage Blog
Advocacy and AttitudeMarch 19, 2016 | By Theodore O. Prosise Ph.D. | Trial Consulting, Trial Themes
Recently I had the pleasure of being a guest lecturer at the University of Washington’s Trial Advocacy class, taught by Bill Bailey, Esq., practitioner turned law school educator. The students were bright and engaged. We discussed principles of human and juror decision-making, some fundamentals of visual advocacy and trial graphics, and what we call “process graphics” or “verdict maps. ” The students broke out into groups and worked on executing those ideas in light of the case study of the course (they were in plaintiff and defense trial teams).
Despite this positive experience and the opportunity the class affords these students, it made me think about the dearth of actual advocacy training and exposure in our educational system and even in the practice of law. Where does one go to learn the art and science of advocacy? Many colleges and universities no longer even offer speech communication courses. Continuing Legal Education (CLE) seminars offer useful opportunities to practicing lawyers, but there are simply so many topics to be covered that advocacy is often drowned out by necessary subject-matter updates. Law firms have internal educational programs and mentorship plans, and we have been lucky to be a part of many of these programs, but actual trial advocacy experience opportunities are few and even further in between.
This also made me think about our firm and our attitude or approach to trial consulting; it reminded me of why we have “advocacy” so prominently in our firm’s branding. As a firm, we view the understanding and effective execution of trial advocacy and persuasion as an attitude and perspective. As such, we recruit and hire from the fields of communication and social psychology, not the law (assuming that if our clients desired advice from an attorney they would consult their partners). Improving effective trial advocacy is at the core of our interest; it is part of our philosophy, recruiting, and brand. We have devoted major portions of our office space to courtrooms, within which clients practice their craft. We have devoted our practice to helping clients determine which cases deserve to be taken to trial and which ought to be settled, based upon the potentials of the competing advocacy positions. We have honed our approach to increasing the chances of the most favorable result if the choice is to proceed to trial.
All of this reflection makes us feel very good about what and how we do things, reminds us of why we do trial consulting, but it also reminds us of the declining emphasis of advocacy training, education, and practice opportunities in our colleges and universities. It reminds us that with all the increasing specialization of education and subject-matter expertise, a core element of social life and success – the art and science of communication and advocacy – seems on the steep decline. Perhaps this lament is just from the perspective of a former professor of communication who now gets to practice and refine the principles of advocacy each and every day, but perhaps this blog can be something else as well. Perhaps it can be a reminder of the critical importance of an attitude and perspective on advocacy, for anyone who will need to make an argument, seek to convince others, defend their point-of- view, “win the day” through reason and thoughtful expression.
The attitudinal effort begins and ends with thoughtfulness about what will inspire your target audience, what values and principles will animate their attention and action. In between this first and last step is the artistic invention of the argument, the construction of vivid and powerful sentences and language that not only intend to inform, but seek to move and motivate. The consideration of how the delivery and performance of such expression can and will grab the audience’s attention, inspire their confidence in the speaker, and leave the audience with psychological satisfaction derived from the acceptance of the prayer comes from an attitude and effort.
It is also best to approach advocacy with an understanding of the medium of expression. Remember that the human mind processes the spoken word differently than the written word – nothing illustrates this much better than reading Martin Luther King, Jr.’s “I Have a Dream” speech versus listening to it and watching it. But too often we write out oral presentations, engaged primarily in how the words look on a page and sound in our head. So, don’t just write your oratory, but consider how it sounds, how it will sound, and take full advantage of the oratorical opportunity. Practice it, perform it, and get feedback not just on how something is written, but how it is verbalized.
Although the formal training and structured education of advocacy is simply not as prominent as it once was, part of the solution to this problem is adopting a mindset toward advocacy. This requires recognizing that rhetorical efforts are not means of deception, cosmetics rather than substance, or manipulation. Rather, rhetorical invention and expression is about finding the words that are most fitting for the occasion, finding the language and appeals that help people make good decisions when, as in most human affairs (and particularly in the law) we are left with making the best decisions when certainty is not possible.
1. Process graphics and verdict maps refer to a specific technique we have been using for years as a means to inform juries about how they should deliberate, including the form and process of deliberation.
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