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McCarthy, P --- "Advocating Communicative Confidence: Empowering Law Students to Be 'Water-walkers'" [2007] LegEdDig 14; (2007) 15(1) Legal Education Digest 37

Advocating Communicative Confidence: Empowering Law Students to be ‘Water-Walkers’

P McCarthy

[2007] LegEdDig 14; (2007) 15(1) Legal Education Digest 37

13 Aust J Comm 1, 2006, pp 73–89

Successful advocates are articulate, often eloquent, fast-thinking, organised, incisive, verbally adept, and appear totally confident in manner and style. They are able to make their case in the most persuasive manner. How do they learn to do this? It is only the most naïve among us who believe that they were born this way. Truly persuasive speakers have often absorbed excellent practice from being in the privileged position of having outstanding role-models constantly around them, and have carried these lessons into practice: ‘the UK author and speaker Charles Handy, for example, comes from a family of bishops and argues that public speaking is in the family’. But, most speakers have ‘coaches and research and practice their work intensively’. They have carefully thought through the tactics they must use to prepare the mind and body for persuasive argument. Therefore even if they do not come from a family of bishops, most capable law students can learn to become powerfully persuasive speakers.

American legal education relies heavily on the use of the Socratic method in the classroom. This method has certainly been a driving force behind courtroom processes throughout the legal systems derived from the British model.

Although this statement applies to American legal education, the same description could also apply in many American classrooms as the process of Socratic enquiry is a strong part of the British, and therefore Australian, legal system. Are there ways in which law students can be helped to feel confident in the face of Socratic enquiry?

This case study will particularly examine how the work in speech communication incorporated into the Moots unit at QUT [Queensland University of Technology] is used to build a bridge to communicative confidence and overcome the performance apprehension so often associated with the Socratic method. It will also look at how both male and female students evaluated the teaching approach for building confidence.

The Moots unit at QUT is an elective that advanced students can choose: students are often in their final year of a Law degree. The unit takes a maximum of 32 students at any one time. The first three weeks of the unit are devoted to developing confidence in speaking in preparation for practice moots, which are judged by a retired Supreme Court judge and the law lecturer coordinating the unit. All students attend the lecture together during these weeks, but the speaking workshops of two (or three) hours each week have a maximum of only 16 students attending. The practice moots are conducted in the electronic moot court and video recorded so that oral and written feedback can be given to each student on their non-verbal performance and persuasive ability as well as on their approach to the law. The feedback and assessment of ‘communicator style’ examine the many elements of persuasive communication that add up to the appearance of confidence in the courtroom. The students go on to further mooting in front of several judges and also to competition moots in which they represent the university against other universities in Australia and overseas. The University of Queensland (UQ) model summarises the pre-requisites for successful mooting as: ‘(1) Strong research skills in substantive and procedural areas of law; and (2) Strong advocacy skills’. The program at Bond University supports the view that skills are best learned by ‘explanation, demonstration, imitation and critique’. It is an area of strong advocacy skills that receives extra support in the QUT Moots Unit. The approach of explanation, demonstration, imitation, and critique is the one used to build these.

When the advocate appears in court, they may not technically be alone in arguing the case: they may have known how to use the help of other lawyers or researchers in the workplace, the aspect that Moss Kanter calls ‘the chemistry of collaboration’ that helps to build ‘confidence’. Most of all, advocates need to have known, during their education, how to build and practise the skills that are the stepping stones to success. Although it is true that speakers need to feel confidence from within, it is also the case that, if they cannot translate this into a confident ‘communicator style’, defined by Norton as the ‘way one verbally, nonverbally, and paraverbally interacts to signal how literal meaning should be taken, interpreted, filtered, or understood’, there will certainly be an appearance of less confidence in interaction. It is also important to realise that being able to externalise a powerful ‘communicator style’ can lead to a greater belief in self and boost to the necessary ingredient of confidence.

Universities in the United States have a tradition of education in the discipline area of speech communication. Part of this tradition involves the theoretical and practical study of rhetoric, or the art of persuasion as it is most commonly known. The School of Communication at QUT, one of the first discipline areas of communication study to be established in Australia, was based on the American model and included units in Speech Communication. More recently, this specialist work has been extended to the Law Faculty at QUT to gauge the benefit of rhetorical theory and speech practice in preparing students for mooting and court work.

To support their speaking practice with theory, the students are given three lectures: (1) ‘Persuasive strategies and power in the courtroom’; (2) ‘The importance of structure to strengthen logical argument’; and (3) ‘Verbal and nonverbal strategies’. It is assumed that a general communication approach to the students’ future careers will consider that they should be persuaders in many different circumstances.

Students are introduced to Aristotle’s three ‘proofs’ as a straightforward way to think about making an argument more persuasive. He believed that the main elements of persuasion were encapsulated in the ideas of (1) ethos, the perceived credibility of the source of the message; (2) logos, the appeal to the rational thinking of the audience; and (3) pathos, the engaging of the audience emotionally with the argument. It is important for law students to be able to put themselves in the position of the judge or, more importantly, to accept the challenge of thinking about the diverse perspectives of the listeners that may be represented in a jury trial, ‘mediation’, or a law practice workplace. This awareness of ‘audience analysis’ is central to the art of persuasion. The audience is a ‘coactive’ participant in successful persuasion. Therefore, Aristotle’s proofs will always be considered in conjunction with audience context in mind.

It is firstly in establishing ethos that confidence plays a major part. It is interesting that modern researchers have also returned some of the significance to ‘emotional intelligence’ as an important part of a successful ‘communicative style’. The students should take this one step further and think about using adaptive communication styles depending on the audience involved. ‘Communicator style’ is an important element for a speaker to understand. All speakers need to be able to accept their own style as a starting point. ‘One can improve on oneself, but one cannot successfully be a good persuader by trying to be someone else’. However, by understanding Aristotle’s formula, we can build a more powerful and versatile communicator style using verbal and nonverbal strategies.

Burke’s own formula for approaching persuasion put a strong emphasis on ‘purpose’ and students should consider purpose in conjunction with audience. Therefore, being aware of the importance of adapting to purpose, context, and audience in communicator style is a beginning stepping stone towards becoming a ‘water-walker’.

In the lecture on structure students are reminded of some of the well-known research on persuasion.

Students are reminded that the ‘glue’ that holds meaning together is in the careful transitions from thought to thought and by using the aids of ‘signposts’, ‘previews’ and ‘summaries’. They are introduced to several designs for persuasive speaking outlined in the many texts on persuasion from the American studies so that they can consider the best structure for a particular argument. They are made aware that they must always back up their evidence with proof.

Finally, they are told about the power of using a theme. Fuentes advises that a good theme has ‘four identifiable characteristics’. It is: (1) User friendly and has broad appeal; (2) Evokes an emotional response; (3) Meshes with other themes; and (4) Can be described in a sentence and easily repeated. A theme can particularly strengthen the link between the argument and the memory of the listeners. It signals that a speaker is organised, succinct, and focused and adds to the impression of a confident ‘communicator style’. The message that preparation is a key stepping-stone to ‘communicative confidence’ is emphasised through all these strategies.

An important part of the ‘communicator style’ is in the choice of words by the speaker. Language strategies such as the use of repetition, the use of imagery through metaphor, and the added power that can be obtained from using words in a three-part list or in juxtaposing oppositional terms are explored. Language choice is one of the outward signs of a confident ‘communicator style’ and, again, it can help the speaker to use pathos and fully develop ethos.

Many studies of nonverbal behaviour have been carried out by contemporary communication scholars and large claims have been made about the high impact of the nonverbal messages. However, it is now considered that any claims from research that up to 90 per cent of a message could be being received nonverbally would be hard to substantiate because of the inherent bias of the verbal messages that accompany nonverbal behaviour. Nevertheless, all nonverbal research has uncovered the fact that this aspect of any message is highly influential in the eyes and ears of the receiver. This is where the use of many video examples can help a lecture and the feedback from the video in the electronic court can help students to examine their own style of nonverbal communication. This is one of the areas we work on carefully in the practice sessions of the workshops.

In conjunction with these lectures, two-hour workshops are conducted. The workshop sessions begin with some body awareness and relaxation and breathing exercises. The Moots students are probably a little taken aback by this hands-on approach, but strangled voices and stiff bodies are really going to hold back their expressiveness in the workplace and the courtroom, and consciousness-raising of these aspects can free the natural voice and body to some extent. The students are given some light-hearted exercises such as, for example, the ‘verbal joust’. The ‘verbal joust’ consists of being asked to carry a message of innocence or villainy through voice and body-language only. Students are given the opportunity to give practice speeches in the workshops and are given detailed feedback sheets to help them analyse the many aspects of verbal and nonverbal communication that add to, or detract from, their message. The stepping-stone to ‘confidence’ in realising the importance of the nonverbal languages is brought into the foreground in class.

Although Garner’s enlightening discussion of the Socratic method, which uses feedback from many major law programs in American universities, concludes that it ‘deserves a continued place in legal pedagogy’, he suggests that Socratic teaching also needs a ‘new heart’. After all, he reports that it has been attacked by students as ‘demonstrating’, ‘dehumanising’, ‘promoting hostility and competition’, among other such epithets applied to it. He has particularly claimed that it can exacerbate ‘gender’ differentials in legal education and that it is often considered to be a ‘masculinist methodology’. Although the Australian experience is similar to that in the USA and women are more recently arrived in numbers in the law fraternity, Australia has a longer tradition than Harvard, where the first female law students were not admitted until 1950. As in the American classrooms, the balance at law schools in Australia is now equally strong for female numbers as for males. In fact, the Moots unit at QUT has had slightly more female participants than male in the three years it has been running.

Garner reports that some supporters of the ‘Method’ believe that its harshness is its strength and are proud of the ‘ritualised combat’ and ‘boot camp’ nature of its approach. It is not the attitude in the Moots unit at QUT. Garner also reports that both the Berkeley and Banks studies found that ‘while men found no difference between male and female professors from the standpoint of classroom comfort and participation, women expressed an emphatic comfort preference in favour of female professors’. As it turns out, the Moots unit is coordinated by a female staff member, the Speech Communication work is taught by a woman, and the unit has the support of several women as well as men on the staff. The experienced retired judge who comes to hear the practice moots is a man who ‘keeps the students on their toes’ and whose very seniority is awe-inspiring to them, but he is always quite considerate and supportive in his mode of questioning, while remaining tenacious in helping them to follow detail. He fulfils Garner’s request that the teaching effort be more of a cooperative one where the ‘teacher and student work to understand the issues more completely’. Also, the feedback sessions that follow the practice moots give the students a sense of closure, by examining their performance with critique and helping them to see their strengths as well as the areas they need to keep working on. This feedback is carefully handled by the female teachers, who are aware that Socrates believed in treating his students with ‘encouragement’, and believed in ‘congratulation’ and a sense of ‘accomplishment’ being achieved. There is a difficulty that students receive a grade for their moot’s practice, but any tension here has been alleviated by the fact that the work has proved to be of a high standard in most cases: after all, students have self-selected to do this unit. The very nature of the unit prevents it from requiring any harshness of approach.

Because it is true that gender, and lack of privilege for some students, make the ‘Socratic’ tradition seem more daunting, it is particularly useful that the first three weeks of the teaching in Moots have been given over to the supportive task of building communication and persuasive skills.

Both in Australia and America, students have expressed fear in the face of the Socratic method, which is a normal method of teaching in many law classes and is used to come to judgments in the courtroom process. Much of the writing by practitioners in the law journals relates to the importance of using strategies for preparation of arguments, for effective presentation of arguments, and for the importance of confidence in facing legal situations. ‘Little time is spent on training lawyers to develop skills regarding how to communicate effectively with jurors’. There is no doubt that this aspect of communication is also neglected in law schools in Australian universities.

Moss Kanter’s detailed examination of what builds and constitutes ‘confidence’ can help teachers to think more systematically about the stepping stones needed to provide students with confidence in the face of the method. It is argued here that an emphasis on speech communication skills, including looking at rhetorical theory and practical work on ‘Communicator Style’, can add to the confidence building that young lawyers require. Feedback from the Moots unit at QUT confirms that this formula is a helpful one for male and female students alike. Although the American research asserts the existence of ‘Socratic misogyny’, and it is likely that Australian research may uncover similar results, it was found that both male and female students, although experiencing considerable fear, reported that they were greatly helped to overcome that by the approach taken in the Moots unit. It seems reasonable to conclude, from the case study of the experience and evaluation of the effectiveness of the teaching offered in the Moots unit, that more emphasis on speech communication would prove to be a highly empowering approach for law students in Australian universities. The high aspiration of becoming a ‘water-walker’ can seem more achievable.

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