May-June 2018

Leveling up your advocacy skills

Brian Klaus

TDCAA Training Director in Austin

Warm weather is in full swing, so you know the 2018 training year is about halfway over. Even though we’re well on our way to the Annual Update in September, we still have one of the training team’s crown jewels coming up in late July with the Advanced Trial Advocacy Course.
    You all know that TDCAA training is driven by the prosecutors, VACs, investigators, and support staff who make up our membership. Like the thought-reading television technology of the future, the show you see is built with you in mind. But unlike the thought-control television technology of the future, the association does not arbitrarily dictate what our membership needs—although referring to ourselves as “the association” may start to raise eyebrows. We take great pains to find out what training you want and then provide it.
    One conference that has long sated your training desires is the Advanced Course. Every year in late July or early August, TDCAA descends upon the surprisingly cool city of Waco. For years now, the Baylor University School of Law has graciously allowed us to use its facilities for a week of intense trial advocacy development. Thirty-two prosecutors are exposed to the most current information related to a specific case type. They take that information and, in groups of eight attendees and three faculty advisors, apply it to live trial practice in jury selection, open, direct, cross, and close. It all happens in gorgeous courtrooms with real “juries” (Waco townsfolk who volunteer their time), as well as on video. Attendees then receive feedback from their groups and review their performances with a faculty advisor, who gives them valuable feedback on what they did right and what they did wrong. We even provide you with a copy of the performance for additional work down the road.
    Anyone who has had the opportunity to listen to or view himself speak publicly knows that once you cut through the confusion of sounding like a stranger, there is no better way to improve presentation and advocacy skills. I myself can sound real country (read: yahoo) and occasionally speak faster than my mouth can move. I know that because I listened to a recording of myself at trial once. Things I thought were effective as I was saying them were actually overbearing when I heard them on tape, and what I thought were huge mistakes in the moment came across as quite humanizing. This is the kind of feedback you get at our Advanced Trial Advocacy Course.
    Planning for Advanced takes about a year. The training committee officially chooses the type of case (that is, the offense) at its fall meeting. The goal is to pick an offense that prosecutors are trying a lot, presents unique issues, and needs more advanced training. (This year, the case type is intoxication manslaughter with a focus on drugged driving.) Once we settle on an offense, we locate a prosecutor with a real-life case that fits; that case will form the basis of all the course’s exercises. After attendees have applied for the course and are accepted, we send them the case file containing offense reports, labs, videos, and anything else necessary to understand and present the evidence. To make the most of the week, attendees are expected to review the case file before showing up in Waco.
    This year’s case comes from Galveston County and was tried by our course director, Kayla Allen. We are also fortunate to have the actual officers and a DPS toxicologist as State’s witnesses and as defense experts. The case is a hard one—but a winnable one.
    Drug-based intoxication manslaughter was chosen as the case because historically, intoxication based on substances other than alcohol has not been addressed well in Texas (or any state, for that matter). Prosecutors and law enforcement have had success in combatting alcohol-based DWI offenses with better investigations, case analysis, and case disposition. It’s to the point that many of today’s misdemeanor prosecutors have never worked in a world without breath or blood samples on DWIs. That one simple bit of evidence often answers the most difficult question in a DWI case: whether the defendant was intoxicated while driving.
    Proving how wrecks happened and how impairment caused them is a situation unique to intoxication manslaughter. There is a bunch of physics at play, and a difficult balance must be reached between eyewitnesses, photographs, and expert testimony on reconstruction. These are advocacy skills unique to these kinds of cases and will be explored at this school.
    Intoxication cases involving drugs are even more difficult. The simple surety provided by a breath slip or blood alcohol lab report is no longer available when the intoxicant is prescription medicine or an illicit drug. In short, there are no per se standards for drugs, and they are likely not coming. New tools and techniques must be developed, and prosecutors must learn how to employ those tools to see justice done. The Advanced Course this year will delve into current scientific limitations and how good old-fashioned police work can fill in the gaps.  Drugged drivers are on the roads today. They are injuring and killing people in Texas, and prosecutors have a job to do.

One change
I should note one change to the planned 2018 curriculum. In an earlier edition of this journal, I wrote that we were planning an advanced appellate training along with the trial advocacy course. Unfortunately, due to a smorgasbord of reasons, that can’t happen this year. I know this is an area of great interest for prosecutors assigned to appellate work, and I am looking for time and formats to conduct more appellate training in the future. I hate that we weren’t able to pull it off this summer, but the issue is far from closed.

If you’re at all curious, apply!
Attendance at our Advanced Trial Advocacy Course is limited to those with at least three to five years’ experience who submit a completed application. You probably already got one in the mail, but if you folded your application into a fan to beat the summer heat, you can download one below. On that application, there is a requirement for your elected boss (or you, if that is you) to sign off on the form. That signature tells us that you aren’t the only one who believes you will benefit from this course and that if accepted, you will be in attendance. These spots are coveted, and we don’t want to lose one at the last minute. (We know things happen, but we limit those things as much as we can.)
    When deciding who will be accepted, we consider a lot of factors. We absolutely look at current office assignments (e.g., people in their office’s vehicular crimes unit). We also look at geographic representation, number of current applications from a given office, and a person’s trial experience and total years of experience. The bottom line is, if you want to go and your elected thinks you are ready for the challenge, then fill out an application and return it to us. The worst thing that could happen is you get a very nice email from me letting you know we don’t have a spot. And for you bean-counters out there, this course is free. TDCAA picks up the check for travel, hotel, and the training itself, and we provide a per diem for food. There is very little out-of-pocket expense for you or your office.
    The most common question I get from potential Advanced attendees is, “Will this course help me?” Like all great questions, the answer is, “It depends.” There are two sides of the course. The classroom work will focus on intoxication manslaughter-specific issues, and the trial practice portion will use an intoxication manslaughter case as a vehicle to strengthen advocacy skills. You have to have enough trial experience to make the practice meaningful, and you must have sufficient understanding of intoxication manslaughter issues for the assignments to make sense. Obviously, if you need both the intoxication manslaughter training and have enough trial experience to make the practice meaningful, then yes, this course can help you. Don’t let that strict-sounding criteria scare you off, though. If you are an experienced prosecutor who has not recently had the opportunity to get honest feedback, watch yourself in trial, and see other talented prosecutors in action, then this course will absolutely help you. Nothing ventured, nothing gained.
    Intoxication manslaughter charges based on drug-impaired driving are some of the hardest prosecutors try. Learning during your first such trial is how it often is done. This year’s course provides a great primer to those who have not tried such a case and a terrific opportunity to hone skills for those who have.