Theory: Direct or Indirect Criminal Trial Advocacy

 Posted on April 09,2017 in Uncategorized

In hypnosis, there are two basic styles of inducing trance: the direct, or "authoritarian" style, and the indirect, or "Ericksonian" (named after Milton Erickson) style.

The direct: "Close your eyes." The indirect: "You might find yourself wondering whether you can go into trance, and thinking about your doubts you might discover a time when you could feel more relaxed than possibly at any time before you go into trance you might find your eyes trying to stay open or maybe they want to close and you can let them close now... that's riiiiggghhht...."

Neither is better than the other. A good hypnotist will have both available as tools (requisite variety!).

It occurs to me that there are direct and indirect styles of trial lawyering, as well. As well there might be - hypnosis and trial lawyering are just different forms of communication, so they might as well share categories.

Thinking specifically about jury selection (which, if you can get it, matters more than any other part of trial) the direct style would be telling the potential jurors why your client wins (what your defense is). The indirect style would be leading them to tell you why your client wins.

You know which style I favor.

In trial advocacy classes and mock trial in law school, lawyers learn direct advocacy. It's easier to teach, and it's easier to grade - absent a real jury for the advocate to communicate with, indirect advocacy makes no sense.

Because everyone learns it in law school, direct advocacy is what most lawyers practice. Prosecutors, especially, cleave closely to a direct, authoritarian style. This makes sense: Prosecutors come into the courtroom with inherent authority because of their title, and there is no reason for them to throw this advantage away by using an indirect style.

It is possible for a criminal-defense lawyer to overcome the prosecutor's advantage of inherent authority and win a toe-to-toe direct-advocacy battle with the prosecutor. When the defense lawyer is much more experienced than the prosecutor, the prosecutor's inherent advantage is mitigated. If the jury sees that the prosecutor is wrong about the law and the defense lawyer is right, the prosecutor's inherent advantage evaporates.

But why go toe-to-toe?

There is a martial-arts principle: hard target, soft weapon. You might punch someone in the gut (hard weapon - fist - against soft target - gut) but if you punch them in the face (hard weapon against hard target) you're as likely to incapacitate yourself as to incapacitate them.

If your adversary, who has inherent authority with the jury because she gets a paycheck from the State, is using a direct, authoritarian style of trial lawyering, why would you choose a direct, authoritarian style? Hard target? Soft weapon. Which in this case means "indirect style."

Your jury is a group. You would like it to be a group of thirteen, with you as a member. Authoritarian trial lawyering will never get you there. If you tell your jurors why your client should win, they might follow you - unless your adversary, telling them why your client loses, has more authority than you. But telling them what to do, you will never be part of their group.

If, by contrast, you ask your jurors what they think, and listen to them, and accept them, they might accept you as part of the group. And between your adversary and you, a member of the group, you win.

You never get rapport by asking for it, and you will never get to be a part of the group directly. The only way in is indirectly. That's riiiggghhht.