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The Advocacy Trainer, a Manual for Supevisors, 2008

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The Advocacy Trainer, a Manual for Supevisors, 2008 THE ADVOCACY TRAINER A Manual for Supervisors THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL UNITED STATES ARMY – CHARLOTTESVILLE, VIRGINIA 2008 FOREWORD TO “THE ADVOCACY TRAINER” “Practice is the best of all instructors.” – Publilius Syrus Train hard. Train often. Train as you fight. Train to exceed standards. Train with those who will be side by side with you when you’re in court and when you deploy. More importantly, train those who might not be located near other Judge Advocates once they arrive in theater. Ad­ vocacy skills can be learned. This publication will take you there, providing a wealth of opportu­ nity to train on virtually every aspect of trial advocacy. In the crucible of the courtroom, can you afford for anyone on your team not to know what your opponents already do? Your opponent has probably trained using the methods used in this book. It is too late, once a trial has begun, to hone cross examination skills, to refresh your recollection as to how to properly frame an objection, or to lay a foundation. We need to be ready well in advance of walking into a courtroom. As Judge Advocates faced with very real courtroom dramas, we don’t have the luxury of training up after the case has started. As Major General Altenburg noted in his original foreword to this book, it is not inciden­ tal that we are called Judge Advocates. This publication will help you in ways money can’t buy, to train to be better advocates. The training in this book is performance-oriented, designed to develop and hone the central skills of trial advocacy for counsel of all experience levels, on both sides of the bar. Challenge yourself and your team. Training, especially advocacy training, can be chal­ lenging and fun, but it must be challenging. Do not lower the bar. Our newest members of the JAG Corps have the potential and drive to excel. We owe them the opportunity to develop and stretch their capacity. They will not be content to merely meet minimum requirements. Training along the lines established in this book will guide them to future successes in the courtroom. Do not forget to continue challenging our more experienced counsel. We owe them developmental and sustainment training. In the process of sustaining their skills, they set an ex­ ample, both as advocates and as Soldiers, for our less experienced Judge Advocates. Your commitment to training is critical to our ability to maintain one of the best-trained courtroom forces in the world. This book is the product of the effort of many of our best and brightest. Take advantage of it. Now train! SCOTT C. BLACK Major General, U.S. Army The Judge Advocate General )/~ NOTE TO THE TRAINER Nothing beats the concentration of preparig for and trg a case. There are, however, many ways to get ready to tr those cases better. The materials in TH ADVOCACY TRAINR make it easier for you to train your counsel. They enable you to identifY a skill on which you want to trin counsel, select the module, follow the preparation instrctions, and conduct the training. Before your first session, read the Introduction, which suggests several methods for conducting the training. Then pick a module, set a date, and do some training! THE ADVOCACY TR provides a, not the exclusive method of tring counsel. Although nothg taes the place of rehearsing counsel before tral, this book enables you to train counsel beyond the issues that arse in parcular cases. Inovate whie using THE ADVOCACY TR. For example, while counsel can be used to play witness roles, consider invitig other parcipants, especially other professionals (law enforcement and medical personnel) who are likely to testifY in cour themselves; this can make your tTaining more realistic and give these parcipants valuable couroom preparation. In addition, you should treat each record of tral as a potential training package: review, tab, and copy portons that can be used to create situational training exercises. Use the scenarios in this book as they are wrtten, or adapt them to the needs of your counsel. The materials are suffciently flexible that you can adjust the demands, duration, and intensity of the training. And you can use them over and over. The modules can also be used to sustain the skills of more experienced counsel, as all counsel can always get sharper. In addition, of course, the paricipation of experienced counsel sets an example on two importnt levels: (1) how to perform better in cour, and (2) the value of traing to the already proficient. TH ADVOCACY TR represents the combined efforts of many judge advocates, not only the TJAGSA Crimial Law Deparent, its priar authors and editors, but also senior judge advocates and several members of the 45th Graduate Course. It is not a static package. Let us know what works and what doesn't. Also, let us know your needs. With your input, futue supplements wil be geared to the training needs of you and your counsel. Send your suggestions to Chief, Crimial Law Deparent, The Judge Advocate General's School, ATT: TH ADVOCACY TRR, 600 Massie Road, Charlottesvile, Virginia 22903. Phone: (804) 972-6340. Electronic mail: advt11gm~oijag.ary .mil i "-ìy Criminal Law Department, .I The Judge Advocate General's School Authors LTC Lawrence J. Morris LTC James K. Lovejoy LTC Stephen Henley MAJ Charles N. Pede MAJ Norman FJ. Allen II MAJ Gregory B. Coe MAJ John P. Einwechter MAJ Edye U. Moran Maj Marin H. Sitler, USMC MAJ Victor M. Hansen MAJ Michael J. Hargis MAJ Walter M. Hudson CPT Erik Chrstiansen 45th Graduate Course Contributors LCDR Brenda Arstrong, USN MAJ Bryan Broyles MAJ Geoffrey Corn MAJ Michael Klein MAJ Kurt Mieth LCDR Thomas Miro, USN MAJ John Saunders 46th Graduate Course Contributors LtCol Kenneth Marin, USMC LtCol Robert Sokoloski, USMC LCDR Lara Jowers, USN MAJ Michael Henr 47th Graduate Course Contributors MAJ Michael Seidel Major Gary Barthel, USMC Major Robert Miler, USMC Major John Schum, USMC LCDR Andrea Prince, USN Production Mrs. Ellen C. Beauchamp Mr. Denns Mils Mr. Byrd Eastham Mr. James Davey Contributing Editors LTC Donald G. Curr, Jr. LTC Patrick Lisowski COL Denise Vowell COL Fredric 1. Lederer i "-!ÌY Criminai Law Department, ..I The Judge Advocate General's School THE ADVOCACY TRAINER A Manual for Supervisors TABLE OF CONTENTS FOREWORD TAB A INTRODUCTION TAB B LEARN THE SKILL Module 1: Direct Examination - The Fundamentals • Form of the Question, Inflection, Body Language Module 2: Cross Examination - The Fundamentals • Form of the Question TAB C APPLY THE SKILL Module 1: Voir Dire Module 2: Opening Statements Module 3: Closing Arguments Module 4: Examination of Lay Witnesses - Direct and Cross • Assault Victim • PX Representative Module 5: Expert Witnesses • Qualifying the Witness: Drug Expert Module 6: Assembly of Sentencing Case Module 7: Sentencing Proceedings • Company Commander - Direct Examination Module 8: Objections - The Fundamentals • Videotape Module 9: Demonstrations Module 10: Sentencing Proceedings • The Accused - Direct Examination TAB D DEVELOP THE SKILL: IMPEACHMENT Module 1: Bias, Prejudice and Motive Module 2: Prior Untruthful Acts Module 3: Prior Conviction Module 4: Prior Inconsistent Statements Module 5: Visual Observation Criminal Law Department The Judge Advocate General’s School TAB E DEVELOP THE SKILL: FOUNDATIONS Module 1: Diagrams Module 2: Refreshing Memory and Past Recollection Recorded Module 3: Bad Checks Module 4: Business and Military Records Module 5: Photographs Module 6: Habit Evidence Module 7: Voice Identifications Module 8: Identification of the Accused Module 9: Confessions Module 10: BAC Tests Module 11: Videotapes Module 12: X-rays Module 13: Fax and E-mail Documents Module 14: Fingerprints Module 15: Reputation/Opinion Evidence Module 16: Fungible and Non-Fungible Evidence TAB F HEARSAY Module 1: Present Sense Impression Module 2: Excited Utterance Module 3: Statements for Purposes of Medical Diagnosis or Treatment Criminal Law Department The Judge Advocate General’s School THE ADVOCACY TRAINER A Manual for Supervisors INTRODUCTION The flowers of advocacy are hothouse plants Winston Churchill I. CONCEPT. A. These materials provide supervisors of trial and defense counsel with an informal and entertaining means of training subordinates and assessing their fundamental trial advocacy skills. In the spirit of “hip pocket training,” this book provides Chiefs of Justice and Senior Defense Counsel with a tool to enhance training conducted on a short or no-notice basis. The objective of this training is to maximize time spent practicing the skills necessary for effective advocacy, and to minimize the time counsel spend role playing or memorizing hypothetical fact patterns. B. Additionally, by providing supervisors with necessary materials, the manual enables supervisors to devote their energies to teaching counsel and assessing subordinates’ performances, rather than developing advocacy training from scratch. II. STRUCTURE. A. The Training Module. The training module for each advocacy skill is generally the same. Each module contains the following: 1. Supervisor’s Guide. This guide provides an overview of the advocacy skill and provides specific instructions for conducting the advocacy skill drills. A-1 2. Counsel Handout. Each training module contains a Counsel Handout that you should photocopy and distribute prior to each training session. The handout includes: a brief introduction that explains the purpose of the training, instructions for any necessary preparation by counsel, the keys to success for the advocacy skill highlighted, and a reference list for counsel’s independent study. 3. Evidence. Each training module contains the Evidence (if needed) for counsel use during the training. Items such as sworn statements or physical evidence (checks or other business records) are included if required by the skill drill. 4. Sample Solution. Each training module contains Sample Solutions that you can use in conjunction with the critique that you conduct after each training session.
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