The examples and perspective in this article may not represent a worldwide view of the subject. (March 2016)
Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is an essential trade skill for litigators and is taught in law schools and in continuing legal education programs. It may also be taught in primary, secondary, and undergraduate schools, usually as a mock trial elective.
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.
The topics commonly encompassed within Trial Advocacy are:
The selection of jurors that will be receptive to the argument the attorney intends to make.
Presenting a non-argumentative overview of what the jury will see, often in the context of the attorney's theme, theory and story.
Eliciting evidence from one's own witnesses through non-leading questions. Because studies have shown that people best remember the first and the most recent (last) information heard (methods referred to as primacy and recency), the preferred method is to start with an engaging and favorable topic, move through more mundane matters, and to finish on a strong, favorable point.
The general principles that enable an advocate to make the jurors more receptive to his claims.
In mock trial, students take responsibility for the prosecution/plaintiff or defense case in a trial presented using fabricated evidence, and role-players as witnesses and faculty or volunteers as judge or jury. It evaluates the participants’ skills in argument, evidence handling, and examination of witnesses, but omits jury selection and strategic matters. Mock trial differs from moot court in that moot court practices appellate argument, and so involves no handling of witnesses or evidence, but rather is an exercise in legal research and oral advocacy.
The means of organizing a case into a clear and complete presentation.
The means of organizing the case to maximize the combined impact of every element, and to overwhelm or outmaneuver the opposing counsel while presenting a clear, decisive argument to the jury (or judge, in the case of bench trials).
Advanced strategic skills, based upon psychology and military maneuver philosophy, are generally learned outside the classroom, as few law schools teach them. In fact, academics have criticized advanced strategic techniques for tipping verdicts through means unrelated to the merits of the case. For example, these techniques may be used to cause an advocate unfamiliar with them to take actions that unwittingly undermine his client's interests. There is particular concern regarding the use of advanced strategic techniques by prosecutors, who already wield the substantial power of the State against often poorly resourced defendants.
The counterargument is that strategy can correct already-existing imbalances in the justice system, such as when inexperienced advocates must face highly experienced ones, when small firms oppose large ones, and when poor clients must litigate their rights against wealthy ones. Under the current system, without a well-developed strategy, a small firm with a poor client stands almost no chance of success against a large firm with its greater resources, regardless of the merits of the case.