February 01, 2020

There was much to look forward to when a new textbook on trial advocacy, by two experienced women lawyers,  was released:  new voices, more prominence for women advocates, and [hopefully] the latest in multi-disciplinary insights to teaching and performing the art of litigation.  And the promotional material for Camille Abate’s and Kathleen Mullin’s ADVOCACY EXCELLENCE promised as much, describing it as the “ultimate trial advocacy text” with “cutting-edge trial techniques and tactics…”  Sadly, this book does not live up to its self-promotion.

Let me start with the positive.  This is an easy-to-read advocacy guide, with some very useful flow charts such as the one titled  “simple structure for a chronological direct examination.”  There is also a valuable explanation of brain chemistry and how it primes the listener to be receptive to story-telling; and the book’s emphasis on story-telling and the tools of primacy and recency is laudatory, essential, and absolutely correct.  The “sample questions for common jury selection issues” is a provocative template for how to get venirepersons to reveal potential biases.  There is also a useful discussion of attorney movement during direct examination, using changes in location to emphasize points or transitions.

So what’s the problem?  In instance after instance, there is hyperbole and inadequate or simply wrong analysis.  To make the point, I list numerous examples:

  • The authors claim that in current trial advocacy books “story-telling structure on direct is rarely, if ever, taught.” Since this is a staple of modern trial advocacy literature, it is not surprising that it comes without citation.  A quick review of advocacy texts on this reviewer’s shelf found that theme to be prominent in the current literature.
  • The chart “how to create a case theory” omits any consideration of the Rules of Evidence, a glaring concern since a case theory must be predicated on the likelihood of particular facts being admissible. To fully prepare a case theory, one must do a “best case,” “worst case,” and “likely case” assessment of what items of proof will be admissible and then design 3 case theories.
  • In describing principles for opening statements the book contradicts itself, offering as a positive example an opening statement explaining that the case is the result of “police [who] were too lazy to investigate properly” but then admonishing the reader to never “denigrate…upcoming witnesses.” More importantly, the book maintains that “opening should be an argument” but neither offers a complete (or even partial) illustration of one nor discusses how to be persuasive without crossing the line into argument.  [The one suggestion – to infuse the opening with “the evidence will show” prefaces – is no guidance at all.]
  • The book fails to give needed advice on how to inoculate jurors to bad facts. It reminds the reader to be sure to do this, but then uses an example where the ‘bad’ fact is actually spin-able into a good story.  There is no illustration of how to deal with a bad fact that is just that – bad.
  • Woefully lacking when discussing persuasive techniques for the opening statement is any mention of language – of creating a picture so clear that all jurors will share the same image.
  • In discussing the permitted use of leading questions on direct examination, the text omits the classic example, one found in law, of using leading questions for the ‘special’ witness such as a child.
  • On forensics issues, the book misleadingly claims that cell tower information is accurate in tracking a person’s whereabouts, when in fact there are serious dispute about this; and more glaringly, when offering “five questions” that the litigator must ask about challenging forensic evidence, ADVOCACY EXCELLENCE omits issues of validity of the discipline, the potential impact of biasing information, and whether the expert is offering testimony that goes beyond what the science actually supports, all of which are essential in analyzing forensic testimony.
  • The book cites to Malcolm Gladwell and his book Blink” as an authoritative text for the psychology of how jurors will receive information. Gladwell is not the most authoritative source and in fact has been criticized in scholarship and in judicial writings; and the omission of Kahnemann’s “Thinking Fast And Slow” is confirmation that the authors are not up to par on cognitive psychology and its application to the courtroom.
  • The book has recurring errors or omissions on the law of Evidence. In describing the use of learned treatises to cross-examine an expert, it omits the fact that even if the witness is not familiar with the text it may be used for questioning of the judge judicially notices its status; and almost every example offered of what the book calls “improper [lay] opinion evidence” is in fact proper.
  • The book’s back description claims this to be a book where “[f]or the first time anywhere…law students and lawyers are steered, step-by-step…through contemporary issues not covered in any text, such as…social media,…emojis…and trial software…” The claim is audacious and just wrong.  Other books and articles have covered these topics; and ADVOCACY EXCELLENCE offers one paragraph about “emojis in court” with no “step-by-step” approach.
  • The most surprising omission, across the book, is the absence of samples – a sample opening statement, a sample closing argument.  The book offers an illustrative outline for closing, using a hypothetical case; but without a demonstration of the verbatim closing the outline generates, the guidance is inadequate.

So why such a detailed critique?  Law books are expensive, and too few have a lifespan beyond the course for which they must be purchased.  A trial advocacy text is different – it has a shelf-life of years if not decades, so it is an important investment.  Care must be taken when professors select such a book for their courses and students or practitioners decide to make the purchase.  For all its insights, ADVOCACY EXCELLENCE has too many flaws and fails to live up to its name and its claims of uniqueness and superiority.


Advocacy Excellence: The Jury Trial Camille Abate, Kathleen Mullin (Walters Kluwer 2020)