Writing As a Fundamental Element of Criminal Trial Advocacy

Professor Babe Howell

Writing is a critical starting point for both the legal and the persuasive work of the trial advocate. Although many trial advocacy classes focus exclusively on courtroom "skills" - opening statements, direct and cross examinations, timely objections, use of exhibits, and closing arguments - effective trial attorneys do excellent and extensive research and writing in preparation for trial. Unfortunately, observers (and even some practitioners) are unaware of the extent of research and writing that effective trial advocates do to create the written record that often determines the outcome of a trial.

The Criminal Trial Advocacy course at CUNY incorporates two of the important forms of writing that trial attorneys must master - the persuasive advocacy memo of law and jury instructions. The course requires all students to research and write two drafts of a substantial memo in support of or in opposition to a pretrial motion to present expert testimony on the issue of mistaken identification. The writing process serves several purposes. First, the research and writing educate students about issues that affect identification and inform trial preparation. Second, students engage in peer and self-critique of the briefs, which helps them develop the confidence to edit and revise their own work. Third, the students receive criteria prior to writing the brief and feedback from the professor on each brief to guide them in the use of theme, narrative, authority, word choice, plain English, and the organization of an effective brief. This process reinforces lessons from second-semester Lawyering.

In conjunction with the pretrial motion, the students draft jury instructions on the critical issue of identification. In drafting jury instructions, students must communicate clearly to an audience of jurors that will hear, but not read, the instructions. The jury instruction must be crystal clear, concise, and focused on factors that are most relevant to the attorney's theory of the case while being accurate with regard to the law.

In addition to the motions and jury instructions, writing is also a critical step in preparing for the opening and closing statements in the case. Students focus on the use of narrative to organize facts and persuade the listener. They learn about the limits of memory and attention and develop the ability to write and tell the story of what happened rather than summarizing what each witness will say (as many lawyers tend to do). The narratives inform the facts that must be elicited as well as the tone of questioning.

The lessons gained in Criminal Trial Advocacy are transferable to any advocacy setting (whether civil trials, negotiation, or legislative advocacy work) and reinforce the overall goal of developing legal writing skills in CUNY law students.