Pericles Should Learn to Fix a Leaky Pipe – Why Trial Advocacy Should Become Part of the LLB Curriculum (Part 2)

Authors

DOI:

https://doi.org/10.17159/1727-3781/2018/v21i0a2635

Keywords:

Trial advocacy, Legal skills, Legal education, LLB curriculum

Abstract

The inescapable reality is that most law school graduates are headed for professional life. This means that law schools have some accountability for the competence of their graduates, and thus an educational responsibility to offer their students instruction in the basic skills of legal representation. The most obvious and direct gain from the university law school offering more training in the generally neglected applied legal skills of trial advocacy, interviewing, counselling, drafting and negotiation, is the benefit to students in helping them bridge the gap between traditional basic legal education and practice. Although I strongly believe that the LLB curriculum should also include courses in legal writing, negotiation, client counselling, and witness interviewing, I emphasise adding a clinical course in trial advocacy to the LLB curriculum for a number of specific reasons. Trial advocacy consists of a set of skills that transcends the walls of the courtroom. It is difficult to conceive of a practising lawyer who does not, in some way and at some time, utilise the skills of advocacy - fact analysis, legal integration and persuasive speech. Even the technical "forensic skills" of trial advocacy, such as courtroom etiquette and demeanour, learning how to phrase a question to elicit a favourable response, and making an effective oral presentation, transfer readily to a wide range of applications within both the legal and business worlds. In addition to learning how to prepare and present a trial from the opening speech through to the closing argument, in a trial advocacy course students would also learn to apply procedural, substantive and ethical rules of law to prove or defend a cause of action. Moreover, if university law schools fail to contribute to establishing a substantial body of competent trial lawyers, our failure will ultimately take its toll on our system of justice. The quality of courtroom advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the justice system, and, ultimately, the quality of justice. Also, traditional law school teaching in legal ethics is necessarily abstract and a-contextual. It can be effective at providing instruction in the law of lawyering, but it is seldom as productive when it comes to examining more subtle questions. The university trial advocacy course is the ideal forum in which to raise ambiguous and textured ethical issues. Ethics problems cannot be avoided or rationalised, because the student trial lawyer must always make a personal decision. In the ethics classroom, it is all too easy to say what lawyers should do. In the simulated courtroom, students have to show what they have chosen to do. I argue that a university trial advocacy course should not be antithetical to the university mission. Thus, students should be given the opportunity to learn not only "how" to conduct a trial, but also "why" their newly acquired skills should be used in a certain way, and "what" effect the use of that skill could have. Through properly constructed case files, assignments and class discussions, students should be able to reflect on issues that go beyond the mere mastery of forensic skills. A university course in trial advocacy must be infused with instruction in evidence, legal ethics, procedure, litigation planning, the encouragement of critical thinking about the litigation and trial process, and the lawyer's role in the adversary system. I also suggest, in concrete terms and by way of example, the outlines of both the theoretical and practical components of a university trial advocacy course that would result in a highly practical course of solid academic content.

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Author Biography

Willem Hendrik Gravett, University of Pretoria Faculty of Law

Senior Lecturer, Department of Procedural Law

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List of Abbreviations

ABAJ American Bar Association Journal

AmJ TrialAdvoc American Journal of Trial Advocacy

BUL Rev Boston University Law Review

Buff L Rev Buffalo Law Review

BYU Educ & L J Brigham Young University Education and Law Journal

Clev St L Rev Cleveland State Law Review

Duq L Rev Duquesne Law Review

Fordham L Rev Fordham Law Review

Ga L Rev Georgia Law Review

J Leg Ed Journal of Legal Education

Law & Psychol Rev Law and Psychology Review

LCP Law and Contemporary Problems

Legal Educ Rev Legal Education Review

Loy L A L Rev Loyola of Los Angeles Law Review

LQR Law Quarterly Review

Md L Rev Maryland Law Review

Mo L Rev Missouri Law Review

Notre Dame L Rev Notre Dame Law Review

Pace L Rev Pace Law Review

PELJ Potchefstroom Electronic Law Journal

Rev Litig The Review of Litigation

SALJ South African Law Journal

Stetson L Rev Stetson Law Review

Sw L J Southwestern Law Journal

Temp L Rev Temple Law Review

Tulsa LJ Tulsa Law Journal

UCLA L Rev University of California at Los Angeles Law Review

U Miami L Rev University of Miami Law Review

Washburn L J Washburn Law Journal

Wm Mitchell L Rev William Mitchell Law Review

Yale L J Yale Law Journal

Published

01-02-2018

How to Cite

Gravett, W. H. (2018). Pericles Should Learn to Fix a Leaky Pipe – Why Trial Advocacy Should Become Part of the LLB Curriculum (Part 2). Potchefstroom Electronic Law Journal, 21, 1–32. https://doi.org/10.17159/1727-3781/2018/v21i0a2635

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Articles