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The evolution of the trial advocate means adapting to the time, manner, and means necessary for human persuasion. It also means personal growth. The trial advocate must adapt himself, by appreciating who he is and to speak in his own voice. In a day when the trial is becoming increasingly algorithmic, the human connection can create the greatest value for rendering justice.
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It is important here to prevail upon such unifying morality that there can be no room for dissent with the value proposition. By way of example, the notion of justice is arguably universal, but it is subjective in nature.
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The extrajudicial influence of emotions is arbitrary, whereas those that are used by a trial advocate in a courtroom are fairly presented, subject to rebuttal, and congruent to the case. Despite this, judges routinely exclude emotion from the courtroom.
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Physics may be the most rational of human pursuits. According to quantum theory in physics, the reality of a physical phenomenon is often dependent on the perception of a conscientious observer.
The more dynamic each piece of evidence, the more memorable it will be. Fact finders need to see, hear, touch, and feel the evidence, and they must connect with and relate to the witnesses.
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Personally, I feel Calico should be bought as quickly as possible, then work to MP5 while ignoring all other guns. Tip, sell Colt first for some extra coins. Then, with MP5 slowly work up to M16 or Aug(skip Ak-47), Assassin if you can. Meh, not much of a full on guide for all levels, just a quick low level guide thingy.
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He interviewed a number of judges about the impact of emotional factors on their decision making. Id. Katula's judges almost universally felt that emotions and reason occupy separate faculties of the mind.
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Rule 403 becomes the shorthand with which judges restrict the introduction of evidence that will yield overwhelming prejudicial force, either by admitting something into evidence or by empowering devastating arguments. This procedure highlights that the trial practice is not always something rooted in the law or the facts, but rather, the intuitive exercise of knowing the judge and knowing people. In practice, some judges say that evidence is prejudicial simply because they think that one party does not need it to prove their case.
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Advocates must distill into simple terms the way that an audience can act on what they just heard. In this way, the trial becomes interactive. There was a problem, it was dramatic, and there was a solution.
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I interacted and got audience feedback. I pulled heartstrings and imparted knowledge. I did not try to be exhaustive, but I had a point: to make the case that we need to update trial advocacy. I argued why it is critical that lawyers, students, and professors -as well as judges, legislators, and corporate clients -each celebrate the importance of the trial.
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A few years ago, I tried a series of cases involving genocide in Africa. I fretted that an American jury would be unable to empathize with the African victim-witnesses, because they had so little in common, and some of them did not even communicate in the linear narratives that English speakers use in almost all types of communication. However, over the course of three trials, I found that empathy is a universal trait.
Quality trial advocacy either persuades or perishes. We live in an age where automation and predictability are diminishing the importance of human perspective. This Article proposes that trial advocacy can evolve to better fit the contemporary audience. Trial advocates will be no more successful than artificial intelligence machines at persuading others if they fail to evolve to changes in a diverse and shrinking world.
Speaking more freely and persuasively to a jury that is accustomed to absorbing emotional content with more than just reason will allow lawyers to be more effective in court, and may result in more accurate justice. To the extent that there is a deliberate calculus to neuter the advocate, it is from a view of justice as a more concrete, one-dimensional problem, rather than as the legacy of nuanced, individualized cases.
Evolution of the trial advocate: from Quintilian to Quanta in the contemporary courtroom
When it emerged, quantum theory was revolutionary. Thousands of years of physics orthodoxy had been up-ended by the concept of how energy and matter relate to one another; sometimes a wave is a particle, and sometimes a particle is a wave. What I call the "Quantum Theory of Advocacy" can be used to favorably change a juror or observer's decision by cultivating themes that resonate with facts and feelings to shape belief. Facts that pack more emotional punch than their soberer and logic-leaning counterparts, when strung together, can fundamentally alter the view of the conscientious observer.
Marshall ultimately recognized that jurors would have biases, but he was more worried about a jury that could not be persuaded, recognizing the imperfection of such an exercise. Implicit in his acknowledgment of the vagaries of bias was the empowering of trial advocates to hone their craft. Acknowledging that one's strength and depth of belief is tied to intransigence is important.
Leveraging other advocates in the deliberation room reinforces your narrative and themes, and you can only do that by giving jurors the necessary details. It is also another manifestation of quantum theory at trial -turning each factual particle into a wave. A fact that resonates on an emotional level, and furthers a narrative by filling a void of cognition through an inference, becomes the fuel that transforms a juror into your advocate. One way to experience this is to identify commonalities and unify shared experiences amongst the audience.
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Both must be practiced and cultivated to evolve. In fewer and fewer courtrooms around the country, advocates fight the good fight for their clients who have no reasonable alternative than testing the unpredictable waters of trial. Amidst that uncertainty and stress, at the end of a controversy, the trial advocate alone, through his skill and preparation, can skew the odds back to his client's favor. The outcomes of the cases in those courtrooms may in fact be correlated with the quality of the stories that the advocates share, as well as the resonance of the moral of those stories. It is important to recognize that potential can yield incredible, untapped value for clients and lawyers, and ultimately could change the economics that have endangered the jury trial.
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Unfortunately, figuring out where the lines should be drawn is not easy when the cases defining the bounds are so atypical. Ironically, most judges know the lines when they feel them.
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Authority in a courtroom comes with credibility. As a trial lawyer, proper execution requires experience. When you present reliable and relevant evidence, you enhance your own credibility. With proper self-orientation, a trial advocate advertises that the case is not about him, but rather, is about his client. In his own voice, his goal is to personify the client. A seasoned, talented advocate uses seemingly objective facts and tones to convey what is otherwise a side of the story that appears undeniable. When you exhibit proper emotional intelligence, knowing yourself, the impression of your actions, and the emotional climate in the courtroom, you enhance your credibility. Above all, to be the most credible advocate in the courtroom, you have to know your case better than anyone. If you master the details, everyone will see it. You have to present your case without overreaching or exaggerating.
This time, I received the same reaction of anger, but the audience also described something that I did not: the perpetrator's affect. Finally, for a few minutes I again played the video of the crime, although this time starting a few moments earlier to increase anticipation. This time, I again showed the audience the crime that had been committed. On this third occasion, I explained more about who had committed the crime, how they had committed it, and why they committed it. I explained why they were nonchalant, and I provided details about how they had coordinated with each other. The reaction to the third showing was surprising.
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