![\"97816015656311\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2016\/12\/97816015656311.jpg\")
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That there are advocacy basics that increase an advocate\u2019s chance of success cannot be gainsaid.\u00a0 And NITA \u2013 the National Institute for Trial Advocacy \u2013 deserves great credit for providing them in a concise, reader-friendly form in TRIAL ADVOCACY BASICS (NITA, 2016) by Molly Townes O\u2019Brien and Gary S. Gildin.\u00a0\u00a0\u00a0 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<\/em> technique that could warrant rethinking).<\/p>\n What are some of the essentials that BASICS teaches, and teaches well?<\/p>\n Underlying all of BASICS is a recognition that knowledge of cognitive psychology findings is core to improved advocacy.\u00a0 Going beyond the foundational points of \u201cprimacy\u201d and \u201crecency,\u201d the authors\u2019 foundational point is that of story-telling, an essential because the recipients of trial evidence \u2013 the jury \u2013 take disparate facts and reformat them into a story framework they [the jurors] are familiar with.\u00a0 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.<\/p>\n 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.\u00a0 The authors correctly note that people think \u201cfast\u201d most of the time because it is easier \u2013 and \u201cfast\u201d thinking occurs when a situation arises and we quickly [fast] analyze it in light of earlier experiences and treat it the same.\u00a0 When we see a yellow light we don\u2019t think<\/em> slowly \u2013 we respond as we always do to yellow lights.\u00a0 And fast thinking includes formatting facts into pre-existing stories.<\/p>\n What\u2019s the dispute?\u00a0 The authors seem to say that as long as you find a story that is common and appealing, you\u2019ll get the jury because it will “fast” think your way.\u00a0 But there are two concerns.\u00a0 First, if each side has a \u201cfast\u201d think story, what does the jury do then and how does the lawyer respond?\u00a0 Second, sometimes there is not a \u201cfast\u201d think story \u2013 the defense may be that this is the unusual<\/em> case, one where jurors have to pull themselves away from \u201cfast\u201d thinking and go to \u201cslow\u201d thinking, a more analytic mode.\u00a0 That art, a difficult one, is neither acknowledged nor conceptualized.\u00a0 Maybe that\u2019s not<\/em> \u201cbasic\u201d advocacy \u2013 but it is critical to advocacy.<\/p>\n \u201cFast\u201d and \u201cslow\u201d aside, and beyond the occasional quibble [as when jury selection is discussed, it should be framed as designing voir <\/em>dire around what beliefs are harmful and helpful, rather than in terms of a juror \u201cprofile”], TRIAL ADVOCACY BASICS will easily be a lawyer\u2019s friend.\u00a0 There is a reason we are reminded, in all aspects of life, to get \u2018back to basics.\u2019\u00a0 For trial lawyers of all levels of experience, here are the tools to do so.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The adage \u201cbut I\u2019ve always done it that way\u201d is proof only of consistency and not of correctness.\u00a0 Yet there are hundreds if not thousands of lawyers who approach trials with little grasp of advocacy fundamentals and instead \u2018try it the way I always have\u2019 [or \u2018try it the way others before me have\u2019].\u00a0<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,11],"tags":[],"coauthors":[238],"class_list":["post-1824","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-trial-advocacy"],"yoast_head":"\n\n