Trial Advocacy

Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is taught in primary, secondary, and undergraduate schools (usually associated with a mock trial elective). It is taught as an essential trade skill for litigators in law schools and in continuing legal education programs.

The skills of trial advocacy can be broken into two categories: skills that accomplish individual tasks (tactical skills) such as selecting jurors, delivering opening statements and closing arguments, and examining witnesses, and those skills that integrate the individual actions to achieve greater effects and to drive unfolding events toward the advocate’s desired outcome (strategy) .

Most law school trial advocacy courses focus on tactical skills, though some integrate basic methods of strategic planning. Some academics have expressed disfavor with advanced strategic techniques because of the imbalance they create, especially against attorneys who are unaware of them. Proponents of advanced strategic techniques argue that these methods are the only effective means to counter the already-existing imbalances in the system, as between indigent defendants and the state, and between working-class plaintiffs and well-resourced, wealthy corporations.

Like most legal skills, trial advocacy evolved through the apprenticeship and practice of attorneys. Even after 1900 (when the education of attorneys shifted to law schools) most law schools offered little education in advocacy. In 1969, in response to criticism within the judicial system that law schools were not properly preparing attorneys for trial practice, a group of lawyers and law professors combined to form the National Institute for Trial Advocacy (NITA). Since then, many law schools have added or improved their instruction in trial advocacy, and numerous Continuing Legal Education organizations have offered classes surveying the subject area, and on specific topics within the field. Currently nearly one dozen law schools in the United States offer Master of Law (LL.M.) degrees in trial advocacy. Trial advocacy originally focused on individual actions within the trial, proposing methods for improved selection of jurors, delivery of argument, and direct and cross examination. However, in the 1970s, 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.

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