The adage “but I’ve always done it that way” is proof only of consistency and not of correctness.  Yet there are hundreds if not thousands of lawyers who approach trials with little grasp of advocacy fundamentals and instead ‘try it the way I always have’ [or ‘try it the way others before me have’].  And anyone who watches trials or reads transcripts witnesses the harms that may result – the failure to present a coherent story, the impeachment that introduces a more damaging fact, the absence of a unifying and persuasive theme, the cross-examination that is more about discovery than about developing the points needed for closing argument.


That there are advocacy basics that increase an advocate’s chance of success cannot be gainsaid.  And NITA – the National Institute for Trial Advocacy – deserves great credit for providing them in a concise, reader-friendly form in TRIAL ADVOCACY BASICS (NITA, 2016) by Molly Townes O’Brien and Gary S. Gildin.    BASICS is an effective resource, whether the reader is embarking on a first trial, going to trial after a long hiatus from being in the courtroom, or is trying cases day in and day out but needs to take stock of whether regularity is the same as being effective (or whether there is some technique that could warrant rethinking).

What are some of the essentials that BASICS teaches, and teaches well?

  • Cross-examination by “chapters,” a format detailed at length in the classic text by Pozner and Dodds, is distilled to its essence in a handful of pages. Along the way, the authors grapple with the dilemma of ordering a cross when there are both helpful facts to elicit and the need to impeach the witness because of harm done on direct examination – and they make a convincing case for eliciting the good before any attack.  Why?  The  witness is more compliant when cross is not immediately antagonistic; and an attack from the start may dissuade the jury from believing anything the witness says.
  • BASICS details how to design a coherent story based around character [the dominant trait of a player in the trial]; motive [the trigger that caused this player to act]; and plot [a combination of the action and the thought process of the player]. It expands this with one common advocacy component, the “theme” [the “hook” that focuses the jury and establishes the morality of the cause or defense]; and adds a less-often mentioned one, “stakes,” the significant impact the desired verdict will have and that the jury can effectuate and feel satisfied with.
  • The construction of the opening statement into a persuasive tool that avoids the label ‘argumentative’ is especially well developed. If every trial attorney learned only that introductory paragraphs that thank the jury and extol the trial system must be dispensed with, the book would have a significant impact on improving trial practice.  By explanation and illustration, the authors then show the power of a story-telling format, one that uses a simple them at the beginning, once during the narration, and at the crescendo.
  • Controlling the runaway or non-responsive witness is an essential capability and when lawyers can’t the frustration becomes apparent and disrupts flow and strategy. In a neat two pages, as part of a slightly longer presentation on controlling the witness through cross-examination through tried and true techniques, the authors offer and demonstrate “four easy methods” to get answer you want and simultaneously rein the witness in.

Underlying all of BASICS is a recognition that knowledge of cognitive psychology findings is core to improved advocacy.  Going beyond the foundational points of “primacy” and “recency,” the authors’ foundational point is that of story-telling, an essential because the recipients of trial evidence – the jury – take disparate facts and reformat them into a story framework they [the jurors] are familiar with.  Reduced to its simplest, BASICS suggests that if you find the story that will make sense and can tell your facts in that story-board framework, jurors will filter all evidence to conform to that version.

Where I differ, and where the book may be too basic, is in its linking of this approach to the research of economist and psychologist Daniel Kahneman and his classic work THINKING FAST AND SLOW.  The authors correctly note that people think “fast” most of the time because it is easier – and “fast” thinking occurs when a situation arises and we quickly [fast] analyze it in light of earlier experiences and treat it the same.  When we see a yellow light we don’t think slowly – we respond as we always do to yellow lights.  And fast thinking includes formatting facts into pre-existing stories.

What’s the dispute?  The authors seem to say that as long as you find a story that is common and appealing, you’ll get the jury because it will “fast” think your way.  But there are two concerns.  First, if each side has a “fast” think story, what does the jury do then and how does the lawyer respond?  Second, sometimes there is not a “fast” think story – the defense may be that this is the unusual case, one where jurors have to pull themselves away from “fast” thinking and go to “slow” thinking, a more analytic mode.  That art, a difficult one, is neither acknowledged nor conceptualized.  Maybe that’s not “basic” advocacy – but it is critical to advocacy.

“Fast” and “slow” aside, and beyond the occasional quibble [as when jury selection is discussed, it should be framed as designing voir dire around what beliefs are harmful and helpful, rather than in terms of a juror “profile”], TRIAL ADVOCACY BASICS will easily be a lawyer’s friend.  There is a reason we are reminded, in all aspects of life, to get ‘back to basics.’  For trial lawyers of all levels of experience, here are the tools to do so.