The Power of Advocacy
Twenty-five years ago, the University of Texas School of Law’s Mock Trial team won the school’s first national championship. Since then, UT Law mock trial and moot court teams have continued to win national championships—twelve in the last ten years—along with many other regional and state titles. Just as importantly, the Law School’s Advocacy Program, which oversees the development and coaching of the Law School’s teams, has in that time developed into a multidisciplinary center for educating students in the theory and techniques of advocacy and dispute resolution; client and case management skills; practical interdisciplinary skills; and the philosophy behind the art of persuasion.
And the winning tradition in competitions has continued to the present. This year the UT Law team added another national championship to its list, this time in the Judge Conrad B. Duberstein National Bankruptcy Moot Court . Advocacy Program Associate Director Cheryl Brandt likens Director Tracy McCormack to a university athletic director. “She recruits students and develops the program, training, and systems for the teams,” Brandt said. “We just want that tower to be lit.”
McCormack said that though of course she enjoys winning competitions, winning championships is only one part of the Advocacy Program’s broader goal to prepare Law School students to be good lawyers. “This year the students have been really good and worked hard,” McCormack said. “We’re really getting them to understand what an incredible responsibility they have—the power they have—as lawyers. They will make and shape policy choices. They are going to decide things. You have an obligation as a lawyer. You have a moral compass. It’s a really powerful grant of authority you’re given. It’s a calling. A privilege.”
Indeed, competitions are only one way in which the Advocacy Program trains future lawyers for these lofty goals. The program offers introductory and intermediate courses that stress basic advocacy theory and trial technique training, but also exposes students to more complex topics like motion practice, alternative dispute resolution, and courtroom technology. Advanced courses offer intensive training in various specialized areas of advocacy, such as development of trial skills through rigorous training in small sections; focusing on case analysis, evidentiary issues, and effective cross-examination; or civil litigation issues such as motion practice and writing, discovery and depositions, and the use and relevance of technology in litigation. Additionally, many students are members of the Board of Advocates, a student organization that promotes development of oral and written advocacy skills and organizes intramural and mock trial competitions. The Law School’s Eidman Courtroom provides students with a place to practice, as well as a functioning courtroom to watch occasional Travis County, Circuit Court of Appeals, and Texas Supreme Court proceedings. The Program’s Judges in Residence series, during which a court’s entire docket is moved to the Law School for several weeks, occurs each semester.
All of this adds up to a uniquely well-rounded program. “We’re training lawyers differently here than anywhere else,” McCormack said. The emphasis on so many different aspects of advocacy is important because of the changing nature of legal work in the twenty-first century. Contrary to the popular image of legal work, fewer and fewer young lawyers ever find themselves involved in trial work as more cases are settled through arbitration and mediation. “You have to learn advocacy here,” McCormack said. “Because if you don’t, you might not learn it anywhere else. They need to get as much trial experience as they can while they’re at school.”
Indeed, in something of a paradox, the fact that fewer cases go to trial has made law school training in trial advocacy much more important than in the past. Once, young lawyers would be expected to learn trial work as young associates, but this is now no longer reliably the case. However, lawyers must still know how the trial and appeals process works so that they can craft credible and effective work for their clients, even if the cases never come to trial. “You have to know what the trial or appeal would look like at the end in order to make your earlier work better,” McCormack said. “You have to know the connections between early work and appeal.”
One major way the Program attempts to inculcate these skills is through the Fall Litigation Institute, a yearly crash course in trial skills open to all second- and third-year law students. The institute covers everything from the basics of laying a foundation to advanced witness examination techniques to making and overcoming objections. The Institute began in 2007 as a short course for twenty to thirty students, and has since grown into one of the Advocacy Program’s more popular initiatives, drawing over a hundred and fifty students every year. The Institute is taught by the Program’s interscholastic mock trial and moot court instructors, all of whom are practicing lawyers. Thus, the institute also acts as a recruiting event for those interscholastic competitions, and future national champions are often found at the Institute, sometimes to the students’ surprise. “A lot more of the students who try out for the Fall Litigation Institute are good at it than they know,” McCormack said.
The Advocacy Program is a truly interdisciplinary program, reflecting the many skills and areas of knowledge that can come into play in trial work. But the emphasis on practice is important not just because of the decreasing amount of trial work available to young lawyers. It’s a way students can learn the less defined skills that can only come through experience. “We often ask ourselves, ‘How do you teach the skills needed for the trial arena?,” McCormack said. “How do you teach students to acquire judgment? Strategy?’”
McCormack and other instructors in the Advocacy Program are constantly searching for new training and information that will help students improve their advocacy skills, whether from visiting judges and lawyers or in unexpected areas of scientific and other research.
“We do a lot of work with judges,” McCormack said. “Inns of Court, bar associations, et cetera. We have an institutional relationship with the bench and the bar, and we couldn’t exist without them. In our classes, we do a lot of underlying theory work. There’s so much science that can make us better lawyers, such as new research into how our brains work. And of course we do a lot of work on appellate arguments. We have students discuss things like whether Batson v. Kentucky should be overruled. We do sociological research, empirical research, find things in medical journals. We read books on memory. We’re seeding students for things they’ll be doing five or ten years down the road.”
This interdisciplinary approach to advocacy is best embodied in McCormack’s Advocacy and Practice for the New Millennium class , an advanced seminar course which focuses on cutting-edge advocacy theories and techniques, including learning, practicing, and eventually performing a full voir dire using independent jurors. “The New Millennium Class is a mixture of some skills-learning with a study of policy debates the students will face as young lawyers. We study social science, neuro-linguistic programming; story models, storytelling, and point of view; notions of creativity; and we plug all that into a legal setting. We also hear from experts from fields as wide-ranging as theater and speech pathology.”
That passion for advocacy in all its wide-ranging forms has certainly been taken up by the students, who run their own advocacy group, the Board of Advocates. The Board promotes on- and off-campus moot court, mock trial, mediation, negotiation, and voir dire competitions, and is open to students who participate in or organize advocacy competitions.
Recently, the Advocacy Program began producing “Atticus Profiles,” live interviews with lawyers who have made significant contributions to the profession. The interviews are recorded in front of a student audience, and will be made available for students and alumni to watch. An Atticus Profile of trial lawyer Broadus Spivey, ’62, and Barbara Aldave, an expert on corporate governance and fiduciary responsibilities, have already been recorded, and more are planned. The profiles are named after To Kill a Mockingbird’s Atticus Finch, and reflect the Advocacy Program’s concern not only to prepare lawyers for the future, but to preserve their past legacy. The Program’s past is certainly worth celebrating and preserving, and will inform and inspire teachers and students as they work to further that legacy. —Julien N. Devereux
The University of Texas lit its Main Building Tower on April 27, 2010, to honor the Law School team that won the 2010 National Championship at the Judge Conrad B. Duberstein National Bankruptcy Moot Court competition. This is the twelfth national championship UT Law has won in the last ten years.
The UT Law team swept the Duberstein competition this year. Third-year students Patrick Schmidt and David Shank narrowly beat their team members Kelli Benham, Rex Mann, and brief writer Mark Little (all in their third year), in the final round of the competition to win the national title.
The Duberstein National Bankruptcy Moot Court teams were coached by Debbie Langehennig, ’88, a Chapter 13 Trustee; Jay Ong, a shareholder with Munsch, Kopf & Harr PC; and Vanessa Gonzalez, ’08. Professor Jay Westbrook also works with the bankruptcy moot court teams.
This competition was sponsored by the American Bankruptcy Institute and St. John’s University School of Law. This year, the competition was held March 13–15, 2010, in New York, and included nearly fifty teams from thirty-five law schools across the country. The problem involved Ponzi scheme bankruptcies. The final round panel consisted of Federal Appeals Court Judges R. Guy Cole, of the 6th Circuit; Steven Colloton, of the 8th Circuit; Gerald Tjoflat, of the 11th Circuit; and Wallace Tashima, of the 9th Circuit, along with bankruptcy judges Carla Craig, chief judge for the Eastern District of New York and Stuart Bernstein of the Southern District of New York.
This is ninth time the University has lit the tower in recognition of the Law School teams’ outstanding academic achievements. Previous lightings were for the 1999 National Mock Trial championship team; the 2000 Tournament of Champions Mock Trial national championship team; the 2002 Frederick Douglass Moot Court national championship team; the 2003, 2004, and 2005 Judge John R. Brown Admiralty Moot Court national championship teams; the 2005 ABA Arbitration competition national championship team; the 2004, 2005, 2006, and 2008 Giles Sutherland Rich Memorial Intellectual Property Moot Court national championship teams; and the 2009 Hispanic National Bar Association Moot Court team.
Tracy McCormack’s New Millennium class examines topics in many disciplines in order to give students grounding in the many different perspectives and fields of knowledge that can make an advocate more effective. Some of the books and articles studied in the 2010 New Millennium class were:
“Secret Sway,” by Terry Carter, ABA Journal, September 2001
“In re Julius Caesar, Deceased: Whoever Wrote “Shakespeare” Knew A Few Things About Closing Argument,” by P.W. Murphy, American Journal of Trial Advocacy, Vol. 30, No. 1, 2006
Judgment under Uncertainty: Heuristics and Biases, edited by Daniel Kahneman, Paul Slovic, and Amos Tversky (Cambridge University Press, 1982)
“The Hidden Traps in Decision Making,” by Ralph L. Keeney, Howard Raiffa, and John S. Hammond, Harvard Business Review January 2006.
“Rethinking the role of the image in justice: visual evidence and science in the trial process,” by David Tait, Law, Probability & Risk November 2007
The Emotional Juror, by Todd E. Pettys, Fordham Law Review 76.3 (2007): 1609-1640
The Jury Expert (suggested periodical).
A Trial by Jury, by D. Graham Burnett (Knopf, 2001)
“Empowering the Active Jury: A Genuine Tort Reform,” by Valerie P. Hans, 13 Roger Williams University Law Review 39 (2008)
The Seven Sins of Memory: How the Mind Forgets and Remembers, by Daniel L. Schacter (Mariner Books, 2002)
“Brain Imaging for Legal Thinkers: A Guide for the Perplexed,” by Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, and Rene Marois, 2009 Stanford Technology Law Review 5
The First Trial: Where Do I Sit? What Do I Say? in a Nutshell, by Steven H. Goldberg (West, 1982)
“Cross-Racial Identification Testimony and what not to do about it: A Comment on the Cross-Racial Jury Charge and Cross-Racial Expert Identification Testimony,” by Deborah Bartolomey, Psychology, Public Policy, and Law, Volume 7, Issue 1, March 2001
“Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review,” by Christian A. Meissner and John C. Brigham Psychology, Public Policy, and Law 2001, Vol. 7, No. 1
“The Other-Race Effect in Eyewitness Identification: What Do We Do About It?” by Gary Wells and Elizabeth A. Olson, Psychology, Public Policy, and Law, Volume 7, Issue 1, March 2001
The Juror Factor: Race and Gender in America’s Civil Courts, by Sean G. Overland, (LFP Scholarly Publishing 2008)
“Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience,” by Tracy McCormack and Christopher John Bodnar, The Georgetown Journal of Legal Ethics, Winter 2010.