Trial or Courtroom advocacy is that field concerned with making trial lawyers more effective in trial proceedings and administrative hearings.
Simply put, trial advocacy is the ability for a trial lawyer to exhibit the essential skills in advocating for their clients in civil and criminal courtrooms, and before administrative tribunals. To be clear and convincing in presenting the client’s viewpoint (their story) and evidence to the Trier of Fact. The fundamental feature and objective is to persuade. The most successful trial lawyers are master storytellers.
In order to meet this objective, Trial lawyers must be trained in effective oral and written advocacy skills, trial and motion practices and techniques, and knowledge of courtroom procedures.
However, less than 2% of civil cases actually go to trial in today’s legal landscape, leading to many discussions over the past few years of the ‘vanishing trial’ and its impact to society, practicing lawyers and our clients. This subject is to broad to address in this particular article, but suffice to say that legal commentators have remarked that this phenomenon has reached the point that “trial lawyers have almost all become litigators” as “one of the identified causes for the death of the trial is the sharp decline in trial skills among [lawyers] and the resulting aversion to bringing cases to trial” [Advocacy in the Era of the Vanishing Trial, Robert Burns, April 2013].
With the Supreme Court of Canada decision in Hryniak v. Mauldin, [2014] 1. S.C.R. 87, we continue to see more resources being provided to summary judgement practice. The Supreme Court’s decision signals a cultural shift in mood that indicates a greater receptivity to summary disposition, and according to legal commentators will continue to have a tangible effect on the lower courts.
Knowledge and experience of advocacy and evidence law as it functions at trial is important not only for trials and hearings, but also for pre-trial summary judgement motions as they must be supported by effective advocacy and admissible evidence. “A basic principle of effective advocacy is ‘facts persuade; conclusions don’t’. That principle holds true at all levels, but one can understand it more deeply if one has some experience in the trial courtroom” [Advocacy in the Era of the Vanishing Trial, Robert Burns, April 2013].
The skills of trial advocacy are usually put into two categories: (1) tactical skills that accomplish individual tasks such as pre-trial motions, opening statements and closing arguments, examining and cross-examining witnesses, and selecting jurors; and (2) strategic skills that pull together the various different actions to achieve an overall more powerful and compelling impact, and “to drive unfolding events toward the trial lawyer’s desired outcome”.
Trial advocacy originally focused on tactical skills within the trial. However, over time the US based National Institute of Trial Advocacy (NITA) advanced the concepts of theme and theory as methods of integrating the various components into a cohesive whole. More recently, litigation strategy has blossomed with the importation of concepts from economic game theory, complexity theory, Gestalt psychology, and the application of maneuver warfare as a means not only of integrating the various actions within the trial into a comprehensive case, but also as a means of gaining a decisive advantage over opposing counsel. Proponents of advanced strategic techniques argue that these methods are the only effective means to counter the already-existing imbalances in the legal system, as between individual plaintiffs and well-resourced, wealthy corporations. [Trial Advocacy, Wikipedia]
Having said this, as stated by well known trial lawyer Geoffrey Adair, “preparation is fundamental to success. More cases are won or lost in preparation than in the Courtroom. The advocate must spend many long hours of drudgery thoroughly mastering the facts, meeting with witnesses, reading and analysing documents …. A plan for the entire trial [or summary judgement motion] must be developed before the first witness even begins. Decisions must be made as to what facts will have to be proved to succeed and how these facts will be demonstrated to be so on the balance of probabilities or beyond a reasonable doubt…. The order of witnesses must be decided upon and the story must be reviewed over and over again with them. Without careful and thorough preparation, the natural talent of the advocate to skillfully execute a cross-examination will be utterly wasted”. [G. Adair, On Trial: Advocacy Skills, Law and Practice]
Trial advocacy training is encouraged for lawyers practicing in civil litigation. There are a number of recommended training programs offered by qualified institutions in the US (ie. National Institute of Trial Advocacy: NITA) and Canada (ie. Intensive Trial Advocacy Workshop offered annually at Osgoode Hall Law School; The Advocates’ Society).
However, hands on training provided by senior trial lawyers to junior lawyers during actual trials and hearings cannot be replicated in training programs, and is strongly encouraged for our practicing Bar. Many of our leading senior trial lawyers commenced their legal careers and courtroom training in this manner.
Unfortunately, in the current business climate for law firms, it seems that more law firms are appearing to view their associate lawyers “not as future advocates, but as profit centres. Some law firms appear to be fixated on the earning potential of their employees, not on honing their advocacy skills. Whatever the case, aspiring advocates should not be tethered to their desks; rather, they should be encouraged to seek out opportunities to develop their skills, such as through pro bono and volunteer work. They should also be encouraged to seek out opportunities to assist other lawyers with their trial work, even if the time is not billable. Similarly, senior lawyers should make a concerted effort to include young advocates in all aspects of the litigation process. This may not always be profitable, but is it not in a law firm’s best interest to ensure that its young advocates evolve into skilled trial lawyers? No doubt, a law firm must remain profitable if it is to survive, but how profitable must it be, and at what expense? It is not true that, in the long run, skilled advocates are more highly sought after than those who are not, and that these skilled advocates will therefore attract a greater number of clients, much to their firm’s benefit”. [“Preserving the art of advocacy: Why we need to change how we practice law”, Advocates Journal, September 2013, p. 22]
As I noted in another article, from a positive perspective, some law firms and in-house staff legal litigation departments do address the reduction in the number of civil trials and ensuring our young lawyers obtain trial experience. These firms participate in trial advocacy continuing legal education and hands-on training programs, they have implemented mentorship programs between senior and junior advocates, and their junior lawyers attend trials with senior lawyers as 2nd Chair. Firms with the ‘long view’ encourage their junior lawyers to attend and/or actively participate with Senior Trial lawyers in preparing for and/or attending extensive trials, arbitrations, dispositive motions, leave to appeal applications, and appeals before the Superior Court, quasi-judicial forums, Divisional Court, Court of Appeal and Supreme Court of Canada. [See, The Vanishing Trial in Canada: what is the impact on our Trial Bar]
Eric Sigurdson
