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

Keywords: Trial advocacy, Legal skills, Legal education, LLB curriculum


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




Allen 1990 Notre Dame L Rev
Allen RJ "NITA and the University" 1990 Notre Dame L Rev 705-720

Bennett and Feldman Reconstructing Reality in the Courtroom
Bennett WL and Feldman MS Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture (Tavistock Publications London 2014)

Berger and Mitchell 1992 Am J Trial Advoc
Berger MJ and Mitchell JB "Rethinking Advocacy Training" 1992 Am J Trial Advoc 821-838

Brosnahan 1992-1993 Am J Trial Advoc
Brosnahan JJ "Suggestions for Enriching the Teaching of Trial Advocacy" 1992-1993 Am J Trial Advoc 193-211

Broun 1977 ABA J
Broun KS "Teaching Advocacy the NITA Way" 1977 ABA J 1220-1223

Burger 1967-1968 Washburn L J
Burger WE "Remarks on Trial Advocacy: A Proposition" 1967-1968 Washburn L J 15-24

Burger 1980-1981 Fordham L Rev
Burger WE "Some Further Reflections on the Problem of Adequacy of Trial Counsel" 1980-1981 Fordham L Rev 1-25

Burger 1980 Clev St L Rev
Burger WE "The Role of the Law School in the Teaching of Legal Ethics and Professional Responsibility" 1980 Clev St L Rev 377-395

Burns 1995 LCP
Burns RP "Teaching the Basic Ethics Class through Simulation: The Northwestern Program in Advocacy and Professionalism" 1995 LCP 37-50

Carlson 1989 Ga L Rev
Carlson RL "Competency and Professionalism in Modern Litigation: The Role of Law Schools" 1989 Ga L Rev 689-729

Clare 1975-1976 St John's L Rev
Clare Jr RL "Incompetency and the Responsibility of Courts and Law Schools" 1975-1976 St John's L Rev 463-472

Cramton 1982 J Leg Ed
Cramton RC "The Current State of the Law Curriculum" 1982 J Leg Ed 321-335

Devitt and Roland 1987 Wm Mitchell L Rev
Devitt EJ and Roland HP "Why don't Law Schools Teach Law Students how to Try Lawsuits" 1987 Wm Mitchell L Rev 443-459

Frank 1947 Yale L J
Frank J "A Plea for Lawyer-Schools" 1947 Yale L J 1303-1344

Frank Courts on Trial
Frank J Courts on Trial: Myths and Reality of American Justice (Princeton University Press Princeton 1949)

Fuller and Randall 1958 ABA J
Fuller LL and Randall JD "Professional Responsibility: Report of the Joint Conference" 1958 ABA J 1151-1162; 1216-1218

Geraghty 1990 Notre Dame L Rev
Geraghty TF "Teaching Trial Advocacy in the 90s and Beyond" 1990 Notre Dame L Rev 687-703

Gianantonio 2012 Duq L Rev
Gianantonio AM "The Practical Use of the Trial Advocacy Course in Today's Legal Education Curriculum" 2012 Duq L Rev 485-501

Gravett (Part 1) 2017 PELJ
Gravett WH "The Myth of Objectivity: Implicit Racial Bias and the Law (Part 1)" 2017 PELJ 1-25

Gravett (Part 2) 2017 PELJ
Gravett WH "The Myth of Objectivity: Implicit Racial Bias and the Law (Part 2)" 2017 PELJ 1-25

Gravett 2017 SALJ
Gravett, WH "The Myth of Rationality: Cognitive Biases and Heuristics in Judicial Decision-Making" 2017 SALJ 53-79

Hanrahan 2003 BYU Educ & L J
Hanrahan JK "Truth in Action: Revitalizing Classical Rhetoric as a Tool for Teaching Oral Advocacy in American Law Schools" 2003 BYU Educ & L J 299-337

Hegland 1982 J Leg Ed
Hegland K "Moral Dilemmas in Teaching Trial Advocacy" 1982 J Leg Ed 69-86

Hunter 1996 Law Teacher
Hunter J "Teaching Plumbing with Periclean Ideals: Should it be Done? Can it be Done? Advocacy and Courtroom Scholarship" 1996 The Law Teacher 330-353

Hyman 1990 Notre Dame L Rev
Hyman JM "Discovery and Invention: The NITA Method in the Contracts Classroom" 1990 Notre Dame L Rev 759-784

Imwinkelreid 1988-1989 Ga L Rev
Imwinkelried EJ "The Educational Philosophy of the Trial Practice Course: Reweaving the Seamless Web" 1988-1989 Ga L Rev 663-687

Imwinkelried 1990 Notre Dame L Rev
Imwinkelried EJ "On Achieving Synergy in the Law School Curriculum" 1990 Notre Dame L Rev 739-757

Kadri The Trial
Kadri S The Trial: Four Thousand Years of Courtroom Drama from Socrates to OJ Simpson (Random House New York 2006)

Kaufman 1974 Sw L J
Kaufman IR "Advocacy as Craft: There is More to Law School than a Paper Chase" 1974 Sw L J 495-504

Kaufman 1974 ABA J
Kaufman IR "Advocacy as Craft: Law School is more than a 'Paper Chase'" 1974 ABA J 802-805

Keeton 1981 Md L Rev
Keeton R "Teaching and Testing for Competence in Law School" 1981 Md L Rev 203-222

Kenety 1991 J Leg Ed
Kenety WH "Observations on Teaching Trial Practice" 1991 J Leg Ed 263-267

Levin 1965 Buff L Rev
Levin AL "On the Teaching of Trial Advocacy" 1965 Buff L Rev 390-395

Lubet 1987 J Leg Ed
Lubet S "What We should Teach (but don't) when We Teach Trial Advocacy" 1987 J Leg Ed 123-143

Lubet 1990-1991 Notre Dame L Rev
Lubet S "Advocacy Education: The Case for Structural Knowledge" 1990-1991 Notre Dame L Rev 721-737

Lubet 1994 J Leg Ed
Lubet S "Ethics and Theory Choice in Advocacy Education" 1994 J Leg Ed 81-88

Lubet Modern Trial Advocacy
Lubet S Modern Trial Advocacy: Analysis and Practice (National Institute of Trial Advocacy South Bend 2004)
Mannion 2009-2010 Pace L Rev
Mannion ME "Objections Overruled: The Trial Advocacy Course should be Mandatory" 2009-2010 Pace L Rev 1195-1206

Mauet 1992 Litigation
Mauet TA "Can Trial Lawyers be Taught?" 1992 Litigation 20-23; 64-65

McCarthy 2008 Stetson L Rev
McCarthy TF "The History of Teaching Trial Advocacy" 2008 Stetson L Rev 115-130

McCrimmon 1994 Legal Educ Rev
McCrimmon LA "Trial Advocacy Training in Law School: An Australian Perspective" 1994 Legal Educ Rev 1-19

McElhaney 1974 U Miami L Rev
McElhaney JW "Toward the Effective Teaching of Trial Advocacy" 1974 U Miami L Rev 198-217

Meyers 1997 J Leg Ed
Meyers EW "Teaching Good versus Teaching Well: Integrating Values with Theory and Practice" 1997 J Leg Ed 401-424

Michelman 1982 J Leg Ed
Michelman FI "The Parts and the Whole: Non-Euclidean Curricular Geometry" 1982 J Leg Ed 352-356

Ohlbaum 1993 Temp L Rev
Ohlbaum E "Basic Instinct: Case Theory and Courtroom Performance" 1993 Temp L Rev 1-122

Ordover 1990 Notre Dame L Rev
Ordover AP "Teaching Sensitivity to Facts" 1990 Notre Dame L Rev 813-823

Pertnoy 1994 Mo L Rev
Pertnoy LD "Skills is not a Dirty Word" 1994 Mo L Rev 169-186

Posner 2001 LQR
Posner RA "Clinical and Theoretical Approaches to the Teaching of Evidence and Trial Advocacy" 2001 LQR 731-739

Posner How Judges Think
Posner RA How Judges Think (Harvard University Press Cambridge 2010)

Posner Reflections on Judging
Posner RA Reflections on Judging (Harvard University Press Cambridge 2013)

Saks and Hastie Social Psychology in Court
Saks MJ and Hastie R Social Psychology in Court (Van Nostrand Reinhold Oxford 1978)

Schaller 1972 ABA J
Schaller JP "Teaching Trial Advocacy" 1972 ABA J 1279-1282

Schumacher and Brodsky 1988 Law & Psychol Rev
Schumacher JE and Brodsky SL "The Mock Trial: An Exploration of Applications and Dynamics in Interdisciplinary Training" 1988 Law & Psychol Rev 79-93

Spiegel 1987 UCLA L Rev
Spiegel M "Theory and Practice in Legal Education: An Essay on Clinical Education" 1987 UCLA L Rev 577-610

Tanford 1991 J Leg Ed
Tanford JA "What We don't Teach in Trial Advocacy: A Proposed Course in Trial Law" 1991 J Leg Ed 251-261

Tauro 1970 ABA J
Tauro GJ "Trial Advocacy at the Crossroads" 1970 ABA J 460-464

Tauro 1976 B U L Rev
Tauro GJ "Graduate Law School Training in Trial Advocacy: A New Solution to an Old Problem" 1976 B U L Rev 635-649

Thoman 2011 Army Law
Thoman J "Advancing Advocacy" 2011 Army Law 35-39

Tigar 1985 Litigation
Tigar ME "Talk-Show Advocacy" 1985 Litigation 61-63

Tigar 1990 Rev Litig
Tigar ME "Voices Heard in Jury Argument: Litigation and the Law School Curriculum" 1990 Rev Litig 177-202

Tuoni 1991 Loy LA L Rev
Tuoni G "Two Models for Trial Advocacy Skills Training in Law School - A Critique" 1991 Loy LA L Rev 111-126

Williams 1999-2000 Stetson L Rev
Williams KA "Trial Advocacy: The Use of Trial Skills in Non-Trial Experiences" 1999-2000 Stetson L Rev 1229-1240

Wolfe 1980-1981 Tulsa L J
Wolfe JS "Exploring Trial Advocacy: Tradition, Education, and Litigation" 1980-1981 Tulsa L J 209-228

Zemans and Rosenblum Making of a Public Profession
Zemans FK and Rosenblum VG The Making of a Public Profession (American Bar Foundation Washington DC 1981)

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
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.