Florida Civil - May 2010
A 48-hour overstay at Orlando Airport, delayed by the volcanic ash cloud, seems an ideal opportunity to review the Florida Bar Association’s Civil Advocacy Course.
The extraordinary similarities between the US and English legal systems, which were split over two hundred years ago, make the differences so very stark. The course was based around a mock civil claim for personal injuries and medical negligence before a jury, for virtually all American trials are before a jury.
The American style of opening and closing a case was vastly different to what we were used to in the UK. As the advocacy was directed to a jury it was surprisingly populist, with appropriate quotations from film and song encouraged to grab the attention of jurors. PowerPoint presentations were de rigueur as was dramatically walking around the courtroom or moving the lectern around the room to talk directly to the jury. Each of the English participants attempted to try this, more theatrical, style with varying degrees of success. We were all, despite our best efforts, delighted to be able to return to the safety of a fixed position from which we were able to make submissions and refer to a bundle of documents.
The area in which the English participants found the going easier was in witness handling. As junior barristers, we are all regularly in court whereas our American counterparts would only go to court a handful of times a year, at most. As a result we were more comfortable in the cross-examination exercises. We all however found the ‘back to basics’ review of cross-examination style the most useful part of the course.
A fascinating feature of the course was the jury selection and deliberation sessions. The organisers of the course used an employment agency to recruit mock jurors from different sections of the local community to reconstruct the jury selection process known as a voir dire. The advocates involved in the selection demonstration very impressively memorised the names and background information of each individual juror in order to connect with them and begin the process of persuasion at the earliest opportunity. The advocates then made the selection and provided tactical reasons for their choices.
Following the demonstration of closing speeches, the mock jury’s deliberations were videoed in a ‘fly on the wall’ manner that was replayed to participants at the end of the course. It was incredibly interesting to observe the hidden camera recording in order to understand what parts of the trial they placed importance on, and those parts they dismissed which was very revealing. It goes without saying that the Great American Public often took different views from the lawyers!
Another significant difference with our home jurisdiction was also revealed during these deliberations. The jury was simply left to calculate quantum of damages with no guidance or indication from the attorneys at all. As a consequence, the hidden camera revealed individual jurors recommending polarised figures for different heads of loss often tens of thousands of dollars apart with a split often being performed somewhere in the middle. The jury panel did however have on board an economics student which at times lent a more scientific approach to the damages assessment. The jury’s deliberations and especially its assessment of damages seemed a particularly alien concept to the English participants, but one in which the American attorneys seemed to place great faith and investment in predicting and trying to control, through the jury selection process, the outcome.
Due to the busy programme, we barely had a chance to explore Gainesville. However the time that was spent afforded us a chance to discover creole cooking such as blackened fish and dirty rice, as well as some local beers. The inhabitants of Gainesville were just as friendly as the participants on the programme, always interested as to where we were from and why we were there.
We received a wonderful welcome from both the faculty and the American participants and had some fun entertaining them with a short demonstration of traditional English advocacy in full court dress (to the evident delight of our hosts). We would highly recommend the course to other junior practitioners. Despite the considerable differences in procedure and stylistic approaches to advocacy, there remained a lot of common ground in terms of the course’s objectives to hone and refine the fundamental skills of persuasion. In that regard, it was a privilege to learn and advocate along side a number of experienced and talented attorneys.
Many of the American participants expressed an interest in similar courses/exchanges in the UK.