Feedback From the Bench & Grading Written Advocacy
With the rise of the “vanishing” trial, lawyers must master the art of written advocacy. Part of mastering anything requires consistent feedback. Yet, lawyers operate with little to no commentary from judges on the quality of their written submissions.
In Thinking Fast and Slow, Daniel Kahneman states that we acquire expertise when:
(1) There is an environment that is sufficiently regular to be predictable, and
(2) There is an opportunity to learn these regularities through prolonged practice. An opportunity to learn entails quick and clear feedback. For example:
Among medical specialties, anesthesiologists benefit from good feedback, because the effects of their actions are likely to be quickly evident. In contrast, radiologists obtain little information about the accuracy of the diagnoses they make and about the pathologies they fail to detect. Anesthesiologists are therefore in a better position to develop useful intuitive skills. If an anesthesiologist says, ‘I have a feeling something is wrong’, everyone in the operating room should be prepared for an emergency.
In the practice of law we are lucky that we operate in a somewhat predictable environment. However, we miss out on the immediate feedback of the “anesthetized patient” when it comes to the quality of our written submissions. Absent any atrocious writing, the bench usually remains silent. This is a problem.
Lawyers need to know the mistakes they are making, especially before they ignorantly repeat it ad nauseam and pass the habit down to their juniors.
How do we achieve this? Should a grading system for written submission be instituted (e.g. a grid: on grammar you received 57%, on conciseness etc…., tip: avoid exaggeration)? Would grading written submissions compromise the integrity of the justice system? Should law clerks be assigned the task of feedback? Or, should the judiciary provide examples of what they view as excellent factums and motion records, with commentary as to what makes them excellent?
The bench should curate and release what they consider the best of the written submissions they receive, annotated to indicate what makes these submissions the best, and why.