T H E A D V O C A C Y T R A I N E R A M a n u a l f o r S u p e r v i s o r s THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL UNITED STATES ARMY – CHARLOTTESVILLE, VIRGINIA 2008 FOREWORD TO “THE ADVOCACY TRAINER” “Practice is the best of all instructors.” – Publilius Syrus Train hard. Train often. Train as you fight. Train to exceed standards. Train with those who will be side by side with you when you’re in court and when you deploy. More importantly, train those who might not be located near other Judge Advocates once they arrive in theater. Ad­ vocacy skills can be learned. This publication will take you there, providing a wealth of opportu­ nity to train on virtually every aspect of trial advocacy. In the crucible of the courtroom, can you afford for anyone on your team not to know what your opponents already do? Your opponent has probably trained using the methods used in this book. It is too late, once a trial has begun, to hone cross examination skills, to refresh your recollection as to how to properly frame an objection, or to lay a foundation. We need to be ready well in advance of walking into a courtroom. As Judge Advocates faced with very real courtroom dramas, we don’t have the luxury of training up after the case has started. As Major General Altenburg noted in his original foreword to this book, it is not inciden­ tal that we are called Judge Advocates. This publication will help you in ways money can’t buy, to train to be better advocates. The training in this book is performance-oriented, designed to develop and hone the central skills of trial advocacy for counsel of all experience levels, on both sides of the bar. Challenge yourself and your team. Training, especially advocacy training, can be chal­ lenging and fun, but it must be challenging. Do not lower the bar. Our newest members of the JAG Corps have the potential and drive to excel. We owe them the opportunity to develop and stretch their capacity. They will not be content to merely meet minimum requirements. Training along the lines established in this book will guide them to future successes in the courtroom. Do not forget to continue challenging our more experienced counsel. We owe them developmental and sustainment training. In the process of sustaining their skills, they set an ex­ ample, both as advocates and as Soldiers, for our less experienced Judge Advocates. Your commitment to training is critical to our ability to maintain one of the best-trained courtroom forces in the world. This book is the product of the effort of many of our best and brightest. Take advantage of it. Now train! SCOTT C. BLACK Major General, U.S. Army The Judge Advocate General )/ ~ NOTE TO THE TRAINER Nothing beats the concentration of preparig for and trg a case. There are, however, many ways to get ready to tr those cases better. The materials in TH ADVOCACY TRAINR make it easier for you to train your counsel. They enable you to identifY a skill on which you want to trin counsel, select the module, follow the preparation instrctions, and conduct the training. Before your first session, read the Introduction, which suggests several methods for conducting the training. Then pick a module, set a date, and do some training! THE ADVOCACY TR provides a, not the exclusive method of tring counsel. Although nothg taes the place of rehearsing counsel before tral, this book enables you to train counsel beyond the issues that arse in parcular cases. Inovate whie using THE ADVOCACY TR. For example, while counsel can be used to play witness roles, consider invitig other parcipants, especially other professionals (law enforcement and medical personnel) who are likely to testifY in cour themselves; this can make your tTaining more realistic and give these parcipants valuable couroom preparation. In addition, you should treat each record of tral as a potential training package: review, tab, and copy portons that can be used to create situational training exercises. Use the scenarios in this book as they are wrtten, or adapt them to the needs of your counsel. The materials are suffciently flexible that you can adjust the demands, duration, and intensity of the training. And you can use them over and over. The modules can also be used to sustain the skills of more experienced counsel, as all counsel can always get sharper. In addition, of course, the paricipation of experienced counsel sets an example on two importnt levels: (1) how to perform better in cour, and (2) the value of traing to the already proficient. TH ADVOCACY TR represents the combined efforts of many judge advocates, not only the TJAGSA Crimial Law Deparent, its priar authors and the 45th Graduate Course. editors, but also senior judge advocates and several members of It is not a static package. Let us know what works and what doesn't. Also, let us know your needs. With your input, futue supplements wil be geared to the training needs of you and your counsel. Send your suggestions to Chief, Crimial Law Deparent, The TRR, 600 Massie Road, Judge Advocate General's School, ATT: TH ADVOCACY Charlottesvile, Virginia 22903. Phone: (804) 972-6340. Electronic mail: advt11gm~oijag.ary .mil i "-ìy Criminal Law Department, .I The Judge Advocate General's School Authors LTC Lawrence J. Morris LTC James K. Lovejoy LTC Stephen Henley MAJ Charles N. Pede MAJ Norman FJ. Allen II MAJ Gregory B. Coe MAJ John P. Einwechter MAJ Edye U. Moran Maj Marin H. Sitler, USMC MAJ Victor M. Hansen MAJ Michael J. Hargis MAJ Walter M. Hudson CPT Erik Chrstiansen 45th Graduate Course Contributors LCDR Brenda Arstrong, USN MAJ Bryan Broyles MAJ Geoffrey Corn MAJ Michael Klein MAJ Kurt Mieth LCDR Thomas Miro, USN MAJ John Saunders 46th Graduate Course Contributors LtCol Kenneth Marin, USMC LtCol Robert Sokoloski, USMC LCDR Lara Jowers, USN MAJ Michael Henr 47th Graduate Course Contributors MAJ Michael Seidel Major Gary Barthel, USMC Major Robert Miler, USMC Major John Schum, USMC LCDR Andrea Prince, USN Production Mrs. Ellen C. Beauchamp Mr. Denns Mils Mr. Byrd Eastham Mr. James Davey Contributing Editors LTC Donald G. Curr, Jr. LTC Patrick Lisowski COL Denise Vowell COL Fredric 1. Lederer i "-!ÌY Criminai Law Department, ..I The Judge Advocate General's School THE ADVOCACY TRAINER A Manual for Supervisors TABLE OF CONTENTS FOREWORD TAB A INTRODUCTION TAB B LEARN THE SKILL Module 1: Direct Examination - The Fundamentals • Form of the Question, Inflection, Body Language Module 2: Cross Examination - The Fundamentals • Form of the Question TAB C APPLY THE SKILL Module 1: Voir Dire Module 2: Opening Statements Module 3: Closing Arguments Module 4: Examination of Lay Witnesses - Direct and Cross • Assault Victim • PX Representative Module 5: Expert Witnesses • Qualifying the Witness: Drug Expert Module 6: Assembly of Sentencing Case Module 7: Sentencing Proceedings • Company Commander - Direct Examination Module 8: Objections - The Fundamentals • Videotape Module 9: Demonstrations Module 10: Sentencing Proceedings • The Accused - Direct Examination TAB D DEVELOP THE SKILL: IMPEACHMENT Module 1: Bias, Prejudice and Motive Module 2: Prior Untruthful Acts Module 3: Prior Conviction Module 4: Prior Inconsistent Statements Module 5: Visual Observation Criminal Law Department The Judge Advocate General’s School TAB E DEVELOP THE SKILL: FOUNDATIONS Module 1: Diagrams Module 2: Refreshing Memory and Past Recollection Recorded Module 3: Bad Checks Module 4: Business and Military Records Module 5: Photographs Module 6: Habit Evidence Module 7: Voice Identifications Module 8: Identification of the Accused Module 9: Confessions Module 10: BAC Tests Module 11: Videotapes Module 12: X-rays Module 13: Fax and E-mail Documents Module 14: Fingerprints Module 15: Reputation/Opinion Evidence Module 16: Fungible and Non-Fungible Evidence TAB F HEARSAY Module 1: Present Sense Impression Module 2: Excited Utterance Module 3: Statements for Purposes of Medical Diagnosis or Treatment Criminal Law Department The Judge Advocate General’s School THE ADVOCACY TRAINER A Manual for Supervisors INTRODUCTION The flowers of advocacy are hothouse plants Winston Churchill I. CONCEPT. A. These materials provide supervisors of trial and defense counsel with an informal and entertaining means of training subordinates and assessing their fundamental trial advocacy skills. In the spirit of “hip pocket training,” this book provides Chiefs of Justice and Senior Defense Counsel with a tool to enhance training conducted on a short or no-notice basis. The objective of this training is to maximize time spent practicing the skills necessary for effective advocacy, and to minimize the time counsel spend role playing or memorizing hypothetical fact patterns. B. Additionally, by providing supervisors with necessary materials, the manual enables supervisors to devote their energies to teaching counsel and assessing subordinates’ performances, rather than developing advocacy training from scratch. II. STRUCTURE. A. The Training Module. The training module for each advocacy skill is generally the same. Each module contains the following: 1. Supervisor’s Guide. This guide provides an overview of the advocacy skill and provides specific instructions for conducting the advocacy skill drills. A-1 2. Counsel Handout. Each training module contains a Counsel Handout that you should photocopy and distribute prior to each training session. The handout includes: a brief introduction that explains the purpose of the training, instructions for any necessary preparation by counsel, the keys to success for the advocacy skill highlighted, and a reference list for counsel’s independent study. 3. Evidence. Each training module contains the Evidence (if needed) for counsel use during the training. Items such as sworn statements or physical evidence (checks or other business records) are included if required by the skill drill. 4. Sample Solution. Each training module contains Sample Solutions that you can use in conjunction with the critique that you conduct after each training session. B. Your Training Plan. The training modules may be used in two ways. 1. Training Plan 1: Start with TAB B, Module 1, and each week, every two weeks, or every month, train with the next tab in order. You need only provide the TIME and LOCATION. Time required: Flexible. Many drills can be done effectively in 15 minutes. The same drills can be enhanced in a one hour training session. The key is setting the time aside. 2. Training Plan 2: Given counsel weaknesses and your personal preferences, simply choose a module from anywhere in the text and conduct training. Ideally, the skills build on one another. One module is not, however, a prerequisite for another. The sequence of your training is a function of your priorities and identified strengths and weaknesses. III. RESOURCES. A. All materials necessary to conduct training are included. You must only reproduce sufficient copies of the Counsel Handout and Evidence for your subordinates. Counsel should always bring their Manual for Courts-Martial, Benchbook, and an evidentiary foundations text to the training. A television and VCR are needed when videotapes are part of the training materials. A-2 B. Although supervisors are encouraged to incorporate other materials relevant to the training, this is not required for successful training. To the extent possible, your subordinates should only be the examining counsel. You, or one of your legal specialists, should play the roles of witness or judge. The most important resource you will need is your most precious resource, time. IV. BUT I DON’T KNOW HOW TO TRAIN! A. Most judge advocates question whether they’re qualified to train, and even if qualified, are uncertain how to do it well. The critique methodology provided below (based on the National Institute of Trial Advocacy model) is a complete recipe for providing excellent training and critiques to your counsel. And it gets easier and better the more you do it! B. Construct and deliver your critiques using the following model. HEADNOTE. Tell them WHAT the skill is you are going to address and WHY it is important. Not just, “should lead on cross,” but “we are going to discuss leading on cross-examination. It is important because it keeps you in control of the exam and keeps the witness from straying into material that is not central to your theory of the case.” PLAY BACK the advocate’s words. You need not keep a verbatim log (your attention should remain on the speaker when performing) but you should be able to quote, as accurately as possible, the speaker’s words. This reinforces that you do not have just a vague point – “you didn’t lead much” – but that you can point to exact language that was ineffectual or objectionable. When you can quote the speaker’s language, that person is much less likely to be defensive, will realize the close attention you paid to the performance, and will be more likely to heed your advice. PRESCRIPTION. What to do next time. Avoid “what I would have done” language, as any resentful lawyer is likely to tell you to go ahead and do it (which you will do shortly). Tell them, however, what approach you suggest for next time. “Instead of repeating ‘the evidence will show’ in your opening statement, say it once early, then stick to telling the story, as this will avoid an objection while also enabling you to keep the tightest grip on the panel’s attention as you paint a word picture.” A-3 MODEL AND RATIONALE. This is where you earn your pay. After criticizing the advocate, show how it should be done. This need not be theatrical or elaborate (though it can be both in the right circumstances), but only has to be a solid example of how to perform the criticized portion of the case correctly. This has two main purposes: (a) the student will remember your showing him how to perform much more than a fairly abstract critique of what he did wrong, and (b) it cements your credibility as instructor, if you can help the student navigate through a better way of performing the criticized task. C. This methodology is not meant to be complicated or confining. It is meant to give you a logical construct for helping another lawyer perform better. Following this general structure will help you think harder about which points to critique, why they are important, and what specific advice you can give about how to perform next time. D. Time. When conducting the drills, have a plan for when to critique and how long the critique will be. Of course a host of variables, including how long you have to train and the number of counsel, affect this. Letting counsel perform most or all of the drill, makes the drill as close to real life as possible: in court, counsel get no reinforcement until after trial when a verdict is delivered or supervisors and judges conduct critiques. On the other hand, the value of a drill is that it is not real life and you can stop performance – especially performance that is well off the mark – and have counsel start over, or perform an aspect of the evaluated skill again. If counsel are routinely stopped too frequently, the disadvantage is that they might become intimidated (afraid to take a risk because of impending interruption) or complacent (relying on the supervisor to insert frequent mid-course corrections, thereby sweating insufficiently to get any conditioning value from the drill). Waiting until after the drill makes it most like real life, but may leave you with too many points to make and diminish the absorption value for counsel. E. Videotape. Consider using videotapes in your training. You need not do this all of the time (need to build in time to set up machines, review the tapes), but taping has several virtues: CREDIBILITY. Even when you use the “playback” method of quoting counsel’s words back to them, nothing is as effective as seeing and hearing those words uttered. Your credibility is stronger when your critique is validated by counsel’s seeing and hearing what you just told them they said. A-4