Brian Johnson and I have been at several trial skills programs lately, both together and separately. Since we only teach for practitioners, not law students (I teach in one program at the University of Chicago Law School), we are always interested in how the programs are designed for today’s super-busy lawyers. What case files are used, and how long are they? What other reading is assigned? In other words, how much time are attorneys expected to spend studying and preparing for a trial skills program?
One case file I’ve been teaching lately is over 200 pages long, with a CD in the back. (I haven’t been able to insert a CD into my laptop since 2011, by the way.) The participants also often receive copies of Steven Lubet’s outstanding standard law school trials textbook Modern Trial Advocacy: Analysis and Practice. It is 536 pages long. Or they may receive Thomas Mauet’s Trial Techniques and Trials, 650 pages, also first-rate.
At the program I taught last week, I spotted Lubet’s book on several desks with the shrink wrap still in place. If you had hundreds of emails each day, a large workload, were sleep-deprived, and hadn’t finished reading the case file for the program, would you also start reading a textbook about trials as well? Me neither.
This recent course wasn’t even a full trial, and excluded voir dire, exhibits, and openings. It was three days of intense focus on examinations and closings. Courtroom training programs are becoming shorter and more focused on a few skills at a time.
This is both good and bad. At least law firms aren’t trying to cram a full trial into just three days. But that’s the trouble—it is just a few days. Firms no longer want to pull associates away from work for a week of training. They need them billing hours. That’s the current model. But everything indicates this model is heading for some type of big change.
Until that change comes, we need to make all trial skills programs better now.
We heard Terri Mottershead speak at the NALP PDI conference in December. She said, “If you are still doing things the way you did three to five years ago, it’s time to change.” The gist of her message was that everything is changing fast and we all need to get on board.
So we began to ask, how can we improve our programs for the busy lawyers we teach?
A few years ago, we and many of the trainers we know began asking for more participation in our lectures. We ask more questions to invite a conversation, and when the group is small enough we call on people to make sure they talk if they haven’t contributed. Because we teach speaking skills, we ask groups to repeat examples aloud. This has caused our lectures to become more engaging and fun. Participants look at their devices less often because the live room is more interesting.
And what about the written materials? What about those thick case files and textbooks?
We believe the case files should be much shorter. There is too much to wade through. Many case files available from publishers are designed for a semester-long law school course, or a one-or two-week intensive training that takes place outside of someone’s real job. But for busy practitioners who often work into the night, it seems like harassment to make them also try to cope with a 200-page case file. They mostly arrive at their individual coachings with us, full of apologies that they haven’t had time to process the file.
Not long ago I taught at a motions program at an IP firm where I am quite familiar with many of the associates. While coaching a senior associate who also holds a PhD. in physics, he showed me exactly how much of the case file contained pertinent facts and how much was irrelevant. He had circled the stuff that he needed to remember for his argument, on surprisingly few pages. Knowing this attorney to be one of the smartest people I have ever worked with, my eyes grew large—I had suspected there was that much flab in the file, and he confirmed it.
Why are we wasting everybody’s time with case files like this? We aren’t in law school anymore. Let’s just get lawyers on their feet and talking. These fat files are old-fashioned, designed for a less hectic time. That time is clearly past.
Brian and I teach at some courtroom skills programs that have short case files where everything goes perfectly well. Participants pick up new ideas and improve well beyond where they started. They refresh old skills and acquire new ones. Halfway through, the faculty throws in a new fact pattern that changes something big, and everyone copes with it. Or they change sides. Especially in domestic violence programs, it can be valuable for attorneys to argue the “other” side of cases they don’t normally consider.
What is most important is getting up and thinking out loud where the stakes are low, where nobody is going to jail or losing millions of dollars. What is not important is some theoretical experience of digesting long, winding case files that require attorneys to find minute details that could trip them up. They don’t need red herrings, or to follow a string of facts down a rabbit hole.
Participants in courtroom skills programs need to stand up and TALK. They need to practice hearing their own voices ringing out as loudly as possible, objecting, questioning, arguing, and persuading OUT LOUD.
That’s what courtroom skills programs are about: talking. Not writing. They are also about brainstorming out loud with colleagues and trial partners. They are about listening to colleagues with different styles. They are about the art of persuasion and speaking well as you think on your feet.
- Less “homework.” Assign a workbook or handouts, not 500-page books.
- Shorter case files. If they don’t exist, write one.
- Ask them to watch short videos in the evenings. SHORT videos, not long ones.
How else can we reduce the required preparation and improve the quality of the time spent in the classroom?